# Petition for Writ of Certiorari — Mill v. Colorado Department of Health > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1596%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 515 U.S. 1159 ## Text 7 FILED B41706 apr 171995 No. OFFICE OF THE CLERK In The Supreme Court of the United States October Term, 1994 4 THE MILL, a limited partnership, Petitioner, vs. STATE OF COLORADO, DEPARTMENT OF HEALTH, and THE TREASURER FOR GUNNISON COUNTY, COLORADO, Respondents. - ¢ Petition For Writ Of Certiorari To The Supreme Court Of The State Of Colorado + PETITION FOR WRIT OF CERTIORARI + GeorGE ALAN HOLLEy Counsel of Record Eric E. TORGERSEN Ho.tey, ALBERTSON & PoLk, P.C. 1667 Cole Boulevard Suite 100, Building 19 Golden, Colorado 80401 (303) 233-7838 Attorneys for Petitioner COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 220 QUESTIONS PRESENTED FOR REVIEW This case presents the issue of how property must be valued when a state is directed by the United States to acquire real property to allow the United States to per- form, at no cost to the property owner, remedial action to correct existing radioactive contamination required by federal statute. Does the state, acting through the instru- mentality of its courts, take property without paying just compensation if - in an eminent domain proceeding brought pursuant to the statute - the state denies the owner the right to recover the value of the property determined without regard to the cost of the contem- plated remedial action? This case squarely presents a question left open by Lucas, i.e., how a landowner’s expectations are shaped by land-use regulations in existence before he acquires title. Where tne owner purchases land in reliance on the state’s prior termination of regulations which restricted use of part of the land, does the state - by subsequently regulat- ing that part of the land to prohibit all economically viable use - interfere with the owner’s reasonable invest- ment-backed expectations so substantially that the state effects a compensable taking? ii PARTIES TO THE PROCEEDING The caption contains the names of all parties to this proceeding. ili TABLE OF CONTENTS Page QUESTIONS PRESENTED FOR REVIEW .......... i PARTIES TO THE PROCEEDING ........-----+++-. ii TABLE OF AUTHORITIES ..........---ee-eeeeeeee iv DECISIONS BELOW ...........-ee eee reece renee 1 JURISDICTION ......... ee eee e ee eee erences 2 CONSTITUTIONAL AND STATUTORY PROVI- GIONS Al TSBUE 2... cece cece rene reseccncvenes 2 STATEMENT OF THE CASE ........-0-+-eeeeeeees 3 REASONS FOR GRANTING THE PETITION ...... 10 I. THIS CASE PRESENTS AN IMPORTANT BUT UNSETTLED QUESTION - WHEN DOES THE FIFTH AMENDMENT REQUIRE THAT JUST COMPENSATION NOT BE MEASURED STRICTLY BY THE FAIR MARKET VALUE OF THE LAND TAKEN?..........---- eee ee eee reees 11 Il. THIS CASE PRESENTS AN IMPORTANT QUES- TION - WHEN DOES A STATE’S REGULATION OF LAND SO INTERFERE WITH THE OWNER’S REASONABLE INVESTMENT-BACKED EXPEC- TATIONS THAT IT EFFECTS A COMPENSABLE EE ccc agi asdcavsericvcreccecesccereses 20 EIN Sic sc ncccesrcnseacscessecesecccseces 30 iv TABLE OF AUTHORITIES Page CASES Agins v. City of Tiburon, 447 U.S. 255, 100 5.Ct. Sa TS Lees WD CEs aoc ccc ie kv beneereivsss 24 Alamota Farmers Elevator and Warehouse Co. v. United States, 409 U.S. 470, 93 S.Ct. 791, 35 See ER dk Vedio ook d Vann GA saed eae dee eA 14 Allison v. Smith, 695 P.2d 791 (Colo. Ct. App. 1984) Lxeucd web aed yebe EAs bake aed cake esac e 28, 29 Armstrong v. United States, 364 U.S. 40, 80 S.Ct. ie SRR Ee, | rr er re rere 23 City and County of Denver v. Stackhouse, 135 Colo. Be, ee Tie Bee LESSED wens duke wisn vaneadesasics 26 Creppel v. United States, 41 F.3d 627 (Fed. Cir. 1994) .... 26 Department of Health v. Hecla Mining Co., 781 P.2d 122 (Colo. Ct. App. 1989) (cert. denied)...... 7, im Echave v. City of Grand Junction, 118 Colo. 165, 193 Fae Ee GR ic dan ds ace eunbavn binds cobenereneawn 28 First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.GG2G 250 (ISG7) . wn. cece ccasees 13, 20, 23 Florida Rock Indusiries, Inc. v. United States, 18 F.3d pg SE a re errr rere 23, 25, 26 Fountain v. Metropolitan Atlanta Rapid Transit Auth., 678 F.2d 1038 (11th Cir. 1962) ............... 8 Golden Pacific Bancorp v. United States, 15 F.3d 1066 (Fed. Cir), cert. denied, .... US. _. 115 S£A4. 8 RARE Pa een mee to par en rey 25 Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 ee | ere rr by Ts De at, ae Vv TABLE OF AUTHORITIES - Continued Page Lucas v. South Carolina Coastal Council, .. US. __, 112 §.Ct. 2886, 120 L.Ed.2d 798 (1992) Y oe a oe Ce ee Nae oa edad 71, 23, 24, 25, 27, 29 CO ois 0 5 0 6 Uranium Mill Tailings Radiation Control Act of 1978, 42 U.S.C. §§ 7901-7942 (1988) .............-.. 3 Uranium Mill Tailings Radiation Control Act of 1978, Pub. L. No. 95-604, 92 Stat. 3021 (Nov. 8, ER Pon ey en ee Per oe ee Pee eT eee 5 OTHER AUTHORITY H.R. Rep. No. 1480, 95th Cong, 2d Sess. (1978), reprinted in 1978 U.S.C.C.A.N. 7433 ....--.--+++- 15, 17 rrr anit No. * In The Supreme Court of the United States October Term, 1994 e THE MILL, a limited partnership, Petitioner, vs. STATE OF COLORADO, DEPARTMENT OF HEALTH, and THE TREASURER FOR GUNNISON COUNTY, COLORADO, Respondents. + Petition For Writ Of Certiorari To The Supreme Court Of The State Of Colorado + PETITION FOR WRIT OF CERTIORARI ¢ DECISIONS BELOW The decision of the Colorado Supreme Court, en banc, is reported at 887 P.2d 993 (1994), and is reproduced as Appendix (App.) A. The decision of the Colorado Court of Appeals on rehearing is reported at 868 P.2d 1099 (1993), and is reproduced as Appendix B. The deci- sion of the Colorado Court of Appeals before rehearing 1s reproduced as Appendix C. The initial decision of the Colorado Supreme Court is reported at 809 P.2d 434 (1991) and is reproduced as Appendix D. The initial decision of the Colorado Court of Appeals is reported at 787 P.2d 176 (1989) and is reproduced as Appendix E. The N order of the District Court, Gunnison County, Colorado, is reproduced as Appendix F. The order of the District Court, City and County of Denver, Colorado, is repro- duced as Appendix G. Page references are to the versions in the appendix. JURISDICTION The decision of the Colorado Supreme Court was entered on December 19, 1994, and a timely petition for rehearing was denied on January 17, 1995. The jurisdic- tion of this Court is invoked under 28 U.S.C. § 1257(a). The provisions of 28 U.S.C. § 2403(b) may be applicable to this proceeding. CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE The federal constitutional provisions at issue in this matter are the Supremacy Clause, Article VI, Clause 2 of the United States Constitution and the Fifth and Four- teenth Amendments to the United States Constitution. The Supremacy Clause provides in part: “This Constitu- tion, and the Laws of the United States which shall be made in Pursuance thereof... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The Fifth Amendment provides in part: “[NJor shall private prop- erty be taken for public use without just compensation.” The Fourteenth Amendment provides in part: “[NJor shall any state deprive any person of life, liberty, or property, without due process of law.” The statutes at issue are the Uranium Mill Tailings Radi- ation Control Act of 1978, 42 U.S.C. §§ 7901-7942 (1988), Colorado Revised Statutes, C.R.S. § 25-11-303(d)(IIT) (Repl. vol. 11A 1989), Radiation Control, and C.R.S. § 24-56-117(1)(c) (Repl. vol. 10B 1988), Relocation Assistance and Land Acquisition Policies. The relevant portions of the statutes are set out at Appendix L, J and K, respectively. Citations are to the version in the Appendix. ¢ STATEMENT OF THE CASE In 1973, the Petitioner, The Mill (“The Mill”), pur- chased 61 acres of industrially-zoned land in Gunnison, Colorado, for $260,000. In 1991, Respondent, State of Colorado, Department of Health (“CDOH”), obtained title to all 61 acres of The Mill’s land in an eminent domain proceeding in which The Mill was awarded noth- ing. This case is the consolidated appeal of The Mill’s regulatory taking action and CDOH’s subsequent con- demnation proceeding. The Mill’s property is divided into an approximately 35 acre “tailings pile” parcel, and an approximately 25 acre “mill yard” parcel which is improved with four wells, a 40,000 square foot “mill” building and a 3,000 square foot office building. In the late 1950’s and early 1960's, the property was used as a uranium mill and disposal site for uranium mill tailings. At that time, the property was subject to licensure by the Atomic Energy Commission (“AEC”) authorizing possession of uranium ore. When milling Operations ceased in 1962, AEC issued a separate license forthe mill yard which permitted pos- session of source material produced in past milling activ- ities. In 1964, the property was sold to Colorado Ventures, Inc. (“Colorado Ventures”), which had been issued a license by AEC authorizing possession and storage of the buildings and equipment on the mill yard parcel. In 1968, that license, no. SUA-809, was anended to allow the transfer of equipment if decontaminated properly in accordance with AEC standards. In 1968, Colorado was delegated authority by AEC to regulate radioactive mate- rials previously under AEC’s jurisdiction. CDOH was given the regulatory jurisdiction to license and control the possession and use of radioactive materials. Thus, CDOH was given jurisdiction over license no. SUA-809 without modification. App. 55, 124-125. In 1971, Colorado Ventures obtained an exemption from general licensure of the mill yard parcel as a result of its stabilization. At that time, cleanup efforts were limited to buildings and equipment, with an emphasis on alpha contamination.! App. 125. Although other types of radiation, including radon and other forms of low-level radiation, could be detected as early as 1971, there was insufficient concern for the hazard from these other forms of radiation. After Colorado Ventures completed the required decontamination process, CDOH terminated license no. SUA-809.2 When that license was terminated, 1 Since 1971, other types of radiation, including radon, radon progeny called radon daughters and gamma radiation have become more important. App. 125. 2 The tailings pile remained licensed before and during The Mill’s ownership of the property. ee 1 WN the 25 acre mill yard parcel was authorized by CDOH for unrestricted use. App. 125. In February 1973, one of The Mill’s general partners, Marcus Bishop, conferred with CDOH representatives and reviewed CDOH’s files to obtain information about the property, because The Mill’s partners were concerned that it had previously been used as a uranium mill site. App. 126. The Mill determined that the 25 acre mill yard parcel was safe for unrestricted use, relying on the infor- mation regarding the decontamination and license termi- nation found in CDOH’s files when it made the decision to purchase the property. Based on its review of the information in those files, which indicated that the mill yard parcel was decontaminated and safe for unrestricted use, The Mill purchased the property from Colorado Ven- tures in July 1973. App. 138-139. In 1978, Congress enacted the Uranium Mill Tailings Radiation Control Act of 1978, Pub. L. No. 95-604, 92 Stat. 3021 (Nov. 8, 1978) (codified at 42 U.S.C. §§ 7901-7942 ~ (1988)) (“UMTRCA”). The Mill’s property was included in a list of proposed cleanup sites specified for action under UMTRCA, and The Mill’s property became a “can- didate for remedial action.” App. 128. In 1979, Colorado adopted legislation to carry out UMTRCA. See Radiation Control Act, ch. 269, § 1, 1979 Colo. Sess. Laws 1069 (codified at C.R.S. §§ 25-11-301 to 305 (Repl. vol. 11A 1989)). In 1980, the United States Department of Energy (“DOE”) and CDOH entered into a Cooperative Agree- ment to carry out UMTRCA on the processing sites located in Colorado. App. 174. In 1981, DOE and The Mill entered into a limited use agreement for radiation testing only on the 35 acre tailings pile. In 1982, CDOH and DOE performed a radiation survey on the tailings pile and also, without The Mill’s permission, on the mill yard. App. 56, 129-131. In February 1983, The Mill leased the mill yard to O.C. Coal Company (“O.C. Coal”) for $7,000 per month. The Mill then notified CDOH of this lease. App. 129. In response to that notice, CDOH issued a series of restric- tive letters and communications* which, taken together, prohibited The Mill from using the mill yard for any economically viable purpose. App. 129, 142. Although the mill yard had been released from licensure and its use declared unrestricted, CDOH had been and was continu- ing to issue use restrictions. CDOH’s letter of March 4, 1983, begins these further restrictions by referring to “existing mill yard radioactive contamination”. These let- ters and communications continued, some falsely stating that the mill yard was still under licensure by CDOH. App. 129-130. CDOH restricted the use of the mill building to only those limited portions of the building floor covered by concrete pads. CDOH restricted the use of the mill build- ing and the entire mill yard until The Mill had con- structed certain improvements to align with CDOH’s regulations. CDOH prohibited O.C. Coal from any stor- age other than as expressly authorized by CDOH without decontamination and survey. CDOH also restricted the use of any portion of the mill yard outside the 3 CDOH did not undertake any formal administrative or legal actions to enjoin The Mill’s use of the mill yard or relicense the mill yard. App. 4-5; cf. C.R.S. § 25-11-107 (Repl. vol. 11A 1989). a building to a 50-foot strip along the eastern edge of the property, and prohibited The Mill from constructing any new buildings on the mill yard parcel. App. 95-96. The restrictions on the mill yard had a direct impact on the O.C. Coal lease. App. 130. Because of the numerous and ambiguous restrictions CDOH placed on the use of the property, O.C. Coal terminated its lease with The Mill in May 1984. In 1985, after O.C. Coal had terminated its lease, The Mill flatly asked CDOH what The Mill could do with its property. CDOH’s answer was “not perfectly clear and easily understood” by The Mill. App. 130. Since then, The Mill has been able to put the property to no viable economic use as a result of the restrictions imposed by CDOH.4 App. 142. In January 1986, The Mill filed suit against CDOH alleging inverse condemnation, regulatory taking and estoppel claims resulting from CDOH’s regulation of the mill yard. After a trial on The Mill’s regulatory taking claim® in March 1987, Judge H. Jeffrey Bayless found that CDOH had effected a temporary regulatory taking of The Mill’s property and awarded The Mill lost use damages 4 In the trial on The Mill’s regulatory taking claims, the Denver District Court found that the property was contami- nated to such an extent that it was unfit for general public access. Prior to that trial, The Mill was able to earn only between $500 and $700 per month in rent from storage, less than the property taxes during that time which were over $5,000 per year. App. 142. ° The Denver court dismissed The Mill’s inverse condem- nation claim before trial, holding that CDOH could not have inversely condemned The Mill’s property because it did not have statutory condemnation authority until May 1986. for a period until, as Judge Bayless reasoned, DOE would remediate and return The Mill’s property under UMTRCA. On appeal, the Colorado Court of Appeals reversed the Denver court’s decision to dismiss The Mill’s inverse condemnation claim before trial. App. 109. The Colorado Supreme Court granted certiorari and reversed. App. 93. Justice Mullarkey, disagreeing with the Eleventh Circuit in Fountain v. Metropolitan Atlanta Rapid Transit Authority, 678 F.2d 1038 (11th Cir. 1982), held that a state agency which does not have the power of eminent domain can- not inversely condemn property, App. 99, but neverthe- less concluded that The Mill could seek damages for a regulatory taking, and remanded the case to the Court of Appeals for further review, App. 105-109. In 1989, while The Mill’s case was on appeal, CDOH commenced an eminent domain proceeding in the Gun- nison County District Court to occupy The Mill’s prop- erty for periods of three, and then ten, weeks to allow DOE to conduct radiation and other tests on the property. In 1990, DOE concluded that remedial action was needed for the entire 61 acres, not just the 35 acre tailings pile. DOE then directed CDOH to acquire The Mill's entire 61 acres in fee simple. CDOH then sought and obtained leave to amend its condemnation petition to acquire The Mill’s entire 61 acres in fee. In November 1990, CDOH and The Mill stipulated, in lieu of an immediate possession hearing ————— before the Gunnison court, that in its contaminated con- dition The Mill’s property had a zero fair market value.é In April 1991, on a summary judgment motion by CDOH and over The Mill’s objection, the Gunnison court entered a Rule and Order vesting title to The Mill's property in CDOH with a zero condemnation award. App 120. The Mill appealed the eminent domain proceeding and that appeal was consolidated with the remand appeal of The Mill’s regulatory taking case. App. 77. Subse- quently, the Court of Appeals reversed the Gunnison court's Rule and Order in the eminent domain proceed- ing, holding that the provisions and intent of UMTRCA, as well as equal protection concerns, required that prop- erty taken under UMTRCA be valued in its decontami- nated condition. App. 77. On rehearing, the Court of Appeals entered a modified opinion which, in addition to deciding the proper value of The Mill’s land in the emi- nent domain proceeding, affirmed the Denver court's finding in The Mill’s regulatory taking case that CDOH had effected a regulatory taking of The Mill’s property in May 1984, to establish the valuation date of The Mill’s land in the eminent domain proceeding, and awarded The Mill prejudgment interest from that date. App. 52. ® Before CDOH commenced the condemnation of The Mill’s property, the Colorado Court of Appeals held, in Depart- ment of Health v. Hecla Mining Company, 781 P.2d 122 (Colo. Ct. App. 1989) (cert. denied), that in a condemnation proceeding brought pursuant to UMTRCA, Colorado’s common law rule against enhancement precluded the property owner from intro- ducing evidence of the decontaminated fair market value of the property. In Hecla, as here, the remediation cost far exceeded the property’s decontaminated fair market value. 10 On certiorari, the Colorado Supreme Court reversed both aspects of the Court of Appeals’s decision. App. 1. Writing for the majority, Justice Mullarkey held that The Mill did not have reasonable investment-backed expecta- tions for its property, and therefore CDOH’s actions could not have effected a taking. App. 7-17. Justice Mul- larkey also concluded that Colorado’s statutory rule against enhancement prohibited The Mill from recovering the decontaminated fair market value of its land, on the premise that UMTRCA did not intend this “windfall profit.” App. 17-30. Justice Scott dissented from the majority, arguing that Judge Bayless had found as a mat- ter of fact that The Mill did purchase its property with reasonable investment-backed expectations. App. 38-51. + REASONS FOR GRANTING THE PETITION Supreme Court Rule 10.1(b) lists among the consider- ations governing review on certiorari, the circumstance when a state court of last resort has decided a federal question in a way that conflicts with the decision of a United States court of appeals. Supreme Court Rule 10.1(c) lists among the considerations governing review on certiorari, the circumstance when a state court has decided an important question of federal law which has not been, but should be, settled by this Court, or has decided a federal question in a way that conflicts with applicable decisions of this Court. All of these grounds for review are present in this case. EO 11 I. THIS CASE PRESENTS AN IMPORTANT BUT UNSET- TLED QUESTION - WHEN DOES THE FIFTH AMENDMENT REQUIRE THAT JUST COMPENSA- TION NOT BE MEASURED STRICTLY BY THE FAIR MARKET VALUE OF THE LAND TAKEN? The Mill received a zero condemnation award in an eminent domain proceeding brought by CDOH pursuant to UMTRCA, even though the United States was obli- gated to perform remedial action on The Mill’s property at no cost to The Mill, whether or not the United States allowed The Mill to keep its land. By affirming that award, the decision below illustrates the extreme inequity of Colorado’s rule that a property owner cannot receive any enhancement in the value of his property due to the public improvement for which the property is taken. In this case, “just compensation” requires that Colorado depart from its general rule against enhancement. CDOH condemned The Mill’s property pursuant to authority granted in Colorado’s Radiation Control Act. See C.R.S. § 25-11-303(d)(III) (Repl. vol. 11A 1989). In relevant part, the Act provides: [CDOH] is authorized to obtain [a designated UMTRCA processing] site by condemnation proceedings pursuant to the provisions of article 1 of title 38, C.R.S. A decision made pursuant to the provisions of article 1 of title 38, C.R.S., shall be made in accordance with the criteria estab- lished in section 24-56-117(1)(c), C.R.S., and the provisions of [UMTRCA]. 12 C.R.S. § 25-11-303(d)(IIT) (Repl. vol. 11A 1989) (emphasis added). Because a § 303(d)(III) condemnation is brought at DOE’s behest for UMTRCA purposes, and involves fed- eral funds, the Act requires that the court decide the property's value “in accordance with the criteria estab- lished in [C.R.S. § 24-56-117(1)(c) (Repl. vol. 10A 1988) (codifying Colorado’s common law rule against enhance- ment)] and the provisions of [UMTRCA].” Applying Hecla, see 781 P.2d at 122, the Gunnison court concluded that § 24-56-117(1)(c) prohibited any evidence of the decontaminated value of The Mill’s land. App. 57-66. Since The Mill and CDOH had stipulated, in lieu of an immediate possession hearing, see C.R.S. § 38-1-105(6)(a) (Repl. vol. 16A 1982), that the contaminated value of The Mill’s land was zero, the Gunnison trial court summarily vested title in CDOH.” App. 120. The Colorado Supreme Court affirmed the zero award in CDOH’s UMTRCA condemnation proceeding against The Mill. This case was the second UMTRCA condemnation in Colorado which amounted to a zero award. App. 19, n.11; see Hecla, 781 P.2d at 122. Writing for the majority, Justice Mul- larkey considered whether the Supremacy Clause required Colorado to follow the provisions of UMTRCA, rather than state law, “begin[ning] by assuming that the historic police powers of the state are not to be superseded by any federal 7 After CDOH obtained possession of The Mill’s land in December 1990, the only issue remaining for trial in the con- demnation case was the value of the land taken, see C.R.S. § 38-1-114 (Repl. vol. 16A Supp. 1994), which was determined by Hecla. App. 57-59. Lined WW laws or regulations unless that congressional purpose is clearly shown.” App. 21. The court below concluded that the State's rule against enhancement in value by reason of the public improvement, C.R.S. § 24-56-117(1)(c), was not incon- sistent with UMTRCA, and that UMTRCA did not require Colorado to deviate from its general rule. App. 26-27, 30. Following that preemption analysis, the court determined that The Mill was not entitled to recover the decontarninated fair market value of its property, ie., that The Mill was entitled to receive nothing for the loss of 61 acres of improved land. The question of what compensation is “just” begins with the Fifth Amendment. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987). “The Fifth Amendment . . . provides that private property shall not be taken for public use without just compensation. Such compensation means the full and perfect equivalent in money of the property taken. The owner is to be put in as good [a] position pecuniarily as he would have occupied if his property had not been taken.” United States v. Miller, 317 U.S. 369, 373, 63 S.Ct. 276, 279-280, 87 L.Ed. 336 (1943). “However, this principle of indemnity has not been given its full and literal force. Because of serious practical difficulties in assessing the worth an individual places on particular property at a given time, [this Court has] recognized the need for a relatively objective work- ing rule.” United States v. 564.54 Acres of Land, 441 USS. 506, 510-11, 99 S.Ct. 1854, 1857, 60 L.Ed.2d 435 (1979) (citations omitted). “The Court therefore has employed the concept of fair market value to determine the con- demnee’s loss. Under this standard, the owner is entitled 14 to receive ‘what a willing buyer would pay in cash to a willing seller’ at the time of the taking.” 564.54 Acres, 441 U.S. at 511 (citations omitted). “Although the market-value standard is a useful and generally sufficient tool for ascertaining the compensa- tion required to make the owner whole, [this] Court has acknowledged that such an award does not necessarily compensate for all values an owner may derive from his property.” 564.54 Acres, 441 U.S. at 511. Wnile recognizing the “need for a practical general rule, this Court has refused to designate market value as the sole measure of just compensation.” 564.54 Acres, 441 U.S. at 512; see United States v. Commodities Trading Corp., 339 U.S. 121, 70 S.Ct. 547, 94 L.Ed. 707 (1950). “This Court has never attempted to prescribe a rigid rule for determining what is ‘just compensation’ under all circumstances and in all cases. Fair market value has normally been accepted as a just standard. But when market value has been too diffi- cult to find, or when its application would result in manifest injustice to owner or public, courts have fash- ioned and applied other standards.” Commodities Trading, 339 U.S. at 123; see United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945); see also United States v. 50 Acres of Land, 469 U.S. 24, 29, 105 S.Ct. 451, 454-55, 83 L.Ed.2d 376 (1984); Alamota Farmers Eleva- tor and Warehouse Co. v. United States, 409 U.S. 470, 478, 93 S.Ct. 791, 797, 35 L.Ed.2d 1 (1973) (“The constitutional requirement of just compensation derives as much con- tent from the basic principles of fairness as it does from technical concepts of property law.”) (citations omitted). On those occasions when equity and fairness dictate, this Court has not confined itself to strictly applying the 15 market value standard to determine just compensation. E.g., United States v. General Motors, 323 U.S. at 373. This case merits precisely such a deviation to fully compensate The Mill for the loss of its land. Congress enacted UMTRCA to “protect the public health and safety and the environment from hazards associated with wastes from the uranium or milling pro- cess,” H.R. Rep. No. 1480, 95th Cong., 2d Sess., pt. 1, at 6, 13 (1978), reprinted in 1978 U.S.C.C.A.N. 7433, 7435, at the cost of the nine involved states and the federal govern- ment, id. at 14, reprinted in 1978 U.S.C.C.A.N. 7433, 7436. In UMTRCA, “Congress finds that uranium mill tailings located at active and inactive mill operations may pose a potential and significant radiation health hazard to the public, and .. . that every reasonable effort [should] be made to provide for the stabilization, disposal, and con- trol in a safe and environmentally sound manner of such tailings.” 42 U.S.C. § 7901(a) (1988). UMTRCA’s primary purpose is “to provide . . . in cooperation with the inter- ested States . . . and the persons who own or control inactive mill tailings sites, a program of assessment and remedial action at such sites . . . in order to stabilize and control such tailings in a safe and environmentally sound manner and to minimize or eliminate radiation health hazards to the public.” 42 U.S.C. § 7901(b) (1988). UMTRCA requires DOE to “complete remedial action” at twenty-two separate “processing sites” located in nine states, including The Mill’s property in Gunnison, Colorado. 42 U.S.C. § 7912(a)(1) (1988). The United States pays ninety percent of the cost of performing remedial actions under UMTRCA, including acquisition costs, and the state pays ten percent. 42 U.S.C. § 7917(a) (1988). To 16 accomplish the required remedial action, DOE is “autho- rized to enter into cooperative agreements with [the host states] to perform remedial actions at each designated processing site.” 42 U.S.C. § 7913(a) (1988). The coopera- tive agreement between DOE and the state must “require the State where determined appropriate by [DOE], to acquire any designated processing site.” 42 U.S.C. § 7914(a) (1988). “In determining whether to require the State to acquire a designated processing site,” UMTRCA admonishes that “consideration shall be given to the pre- vention to windfall profits.” 42 U.S.C. § 7914(a). Despite Congress’s direction to consider “windfall profits,” UMTRCA does not define the term, either within the statute or the legislative history which accompanied it. See 42 U.S.C. § 7911 (1988); H.R. Rep. No. 1480, pt. 2, at 37, reprinted in 1978 U.S.C.C.A.N. at 7433, 7464. UMTRCA also omits any means to determine the appropriate acqui- sition cost for a processing site. See 42 U.S.C. § 7914 (1988). UMTRCA does not require ownership of a site to perform remedial action. Under the cooperative agree- ment, DOE may elect to require the state to obtain written consent from the owner to perform the remedial action, 42 U.S.C. § 7913(c)(1) (1988), or may direct the state to acquire the property in fee or some lesser interest®, 42 U.S.C. § 7914(a) (1988). Congress did not require DOE to 8 Despite Justice Mullarkey’s suggestion that prevention of “windfall profits” is the sole factor used by DOE to determine whether to acquire a processing site, App. 22, § 7914 allows DOE virtually unbridled discretion in making its decision, see 42 U.S.C. § 7914. The record may support the trial court’s finding that The Mill was unaware of contamination on the mill yard itself. How- ever, the question before the court is whether The Mill’s expec- tation that there would be no further regulation of the mill yard is reasonable. This determination does not depend on the sub- jective belief of The Mill. It is an objective determination. App. 12 reprinted in 1978 U.S.C.C.A.N. 7433, 7434. Moreover, the facts stipulated to by the parties in the regulatory taking action indicated that The Mill knew that the entire prop- erty, including the mill yard, had been subject to federal licensing and regulation since 1962 due to the presence of radioactive contamination. Although the parties also stipulated that, at the time The Mill purchased the property in 1973, the mill yard was authorized for unrestricted use, it is important to view that stipulation in context. Testimony in the record indicates that no specific restrictions were imposed on the mill yard insofar as CDH did not require The Mill to obtain a specific license for any portion of the property because CDH preferred to obtain compliance through voluntary means. The record also shows that there was some confusion in the department concerning whether the mill yard was subject to a general license. However, the authority to regulate this site was in place at the time of the purchase, whether or not it was exercised at that time. To the extent that radioactive contamination in fact still existed on the property, it remained subject to broad regulatory authority. The Colorado radiation control stat- ute gave CDH authority to “develop and conduct pro- grams for evaluation and control of hazards associated with the use of any and all radioactive materials and other sources of ionizing radiation.” 1963 C.R.S. § 66-26-3 (1967 Supp.) Comprehensive state regulations governing radioactive materials, specifically, maintenance of ura- nium mill tailings piles and the possession of radioactive material, were already in effect at the time the Mill pur- chased the property. See 6 C.C.R. 1007-1 (1970). At the : | i App. 13 time The Mill purchased the site, CDH sent copies of these regulations to the new owner and, after that, con- tinued to monitor both the mill yard and the tailings pile. Under these radiation control regulations, “[nJo per- son shall receive, use, possess, transfer or dispose of radioactive material except as authorized in a specific or general license issued pursuant to these regulations.” RH 3.1, 6 C.C.R. 1007-1 (1970). The regulations imposed a “general license” that was “effective without the filing of applications with [CDH] or the issuance of licensing doc- uments to particular persons” upon receipt of title to source material, e.g., “uranium or thorium, or any combi- nation thereof, in any physical or chemical form.” RH 1.6; RH 3.2; RH 3.3.3. Uranium mill tailings were exempt from these licensing requirements “provided they are in com- pliance with the provisions set forth in [the CDH regula- tions governing mill tailings].” RH 3.19.2.4. Under the regulations, CDH was authorized to “impose upon any licensee . . . such requirements in addition to those estab- lished in these regulations as it deems appropriate or necessary to minimize danger to public health and safety or property.” RH 1.14. Likewise, licensees were required to allow CDH to inspect their facilities and sources of radiation on their property. RH 1.10. Given this regula- tory environment, it is unreasonable for The Mill to claim it had no notice of the significant risk of further regula- tion of the site.® 6 Furthermore, evidence in the record indicates that The Mill may have had actual knowledge of this ongoing regulatory authority. In 1983, the mill owners received an inspection report from CDH stating that the inspection was performed under a App. 14 Just as a property owner “on notice” of government regulatory authority cannot reasonably expect to avoid regulation, neither can a property owner reasonably expect to put property to a use that constitutes a nui- sance, even if that is the only economically viable use for the property. “In accord with ordinary intuition, govern- ment need not pay even for complete takeover or destruction if the latter is justified by the owner’s insistence on using his property to injure other people or their property.” Laurence H. Tribe, American Constitutional Law 593 (New York 1988) (citations omitted) (emphasis added). In par- ticular, the Supreme Court holds that where a regulatory action does not proscribe a productive use that was previously permissible under relevant property and nuisance principles . . . [t]he use of these properties for what are now expressly prohib- ited purposes was always unlawful, and (subject to other constitutional limitations) it was open to the State at any point to make the implication of those background principles of nuisance and property law explicit. Lucas, __ U.S. at __, 112 S.Ct. at 2901. Accordingly, the state may always restrict uses by regulation or statute general license pursuant to RH 3.2.1. Marcus Bishop was the general partner in The Mill responsible for inspecting CDH records prior to purchasing the property. When asked whether this report was the first indication that there was a general license in effect, he stated, “This is the first indication that I have in writing I have any recollection of. There may have been some conversations with some of the people about a general license, but it’s an issue that is still vague to me. I still don’t understand the general license.” App. 15 when such uses previously were forbidden under com- mon law principles. These uses were never part of the landowner’s “bundle of rights that are commonly charac- terized as property.” Kaiser Aetna, 444 U.S. at 176, 100 S.Ct. at 391. Thus, it is unreasonable for a landowner to expect that such uses would never be formally prohib- ited. The relevant Colorado common law principles would not permit a landowner to engage in activities that spread radioactive contamination.? Under Colorado common law, landowners have a duty to prevent activities and conditions on their land from creating an unreasonable risk of harm to others. Moore v. Standard Paint & Glass, 145 Colo. 151, 155, 358 P.2d 33, 36 (1960) (emphasis added). A public nuisance is the doing or failure to do something that injuriously affects the safety, health, or morals of the public or works some substantial annoyance, inconve- nience, or injury to the public. Specifically, under Colo- rado common law, land uses that cause pollution constitute a nuisance. Wilmore v. Chain 0’ Mines, 96 Colo. 319, 325-26, 44 P.2d 1024, 1027 (1934) (“Whatever rights might be claimed by the defendant owners, they cannot justify the claim of a right to pollute the stream.”). Under ” Although the trial court did not address the question of whether CDH restrictions were consistent with the principles of nuisance and property law in existence at the time of The Mill's purchase of the processing site, this determination is a question of law that an appellate court may resolve independently. See Evans v. Romer, 854 P.2d 1270, 1274 (Colo. 1993) (where an issue involves only legal and not factual questions, the lower court’s judgment is subject to independent review by the appellate court). App. 16 Colorado’s nuisance statute enacted a year before The Mill purchased the processing site, “[a]ny unlawful pollu- tion or contamination of any surface or subsurface waters . . or of the air” constitutes a nuisance. 1963 C.R.S. § 39-13-305. Improperly handled, radioactive materials in particular were treated as a public nuisance under Colo- rado solid waste laws enacted before The Mill purchased the site. See 1963 C.R.S. § 36-23-10(d), -14 (1967 Supp.). Under these principles of Colorado nuisance law, the right to make any use of the property that would create a hazard to public health by spreading radioactive contam- ination was excluded from The Mill's title at the onset. The radioactive contamination at the site was present as a result of prior uranium milling activities. It was a condi- tion of the property that did not either arise or disappear as a result of any classification or correspondence issued by CDH. Accordingly, any use limitations suggested by CDH to avoid the spreading of radioactive contamination could not have constituted a taking because those uses were never lawfully available to The Mill even in the absence of CDH action.® Based on this analysis, we conclude that the right to use the processing site in a way that would spread radio- active contamination did not constitute a reasonable 8 Because we find that the uses restricted by CDH action were not within The Mill’s reasonable expectations for use of the property, we will not address the questions of whether the CDH correspondence with The Mill rose to the level of regula- tion or whether CDH “regulation” destroyed all economic value in the property. App. 17 investment-backed expectation. Because we find The Mill’s expectations to have been highly unreasonable, this factor is “so overwhelming” as to dispose of the taking issue for purposes of determining just compensation. Monsanto, 467 U.S. at 1005, 104 S.Ct. at 2874. ITT. Sections 25-11-301 to 305, 11A C.R.S. (1989), govern the state’s participation in federa! implementation of UMTRCA. Under section 303(d)(III), CDH is authorized to acquire a processing site by condemnation proceedings if necessary. § 25-1 1-303(d)(III). Fair market value in these proceedings is to be determined “in accordance with the criteria established in section 24-56-117(1)(c), C.R.S., and the provisions of the federal ‘Uranium Mill Tailings Radi- ation Control Act of 1978.’ ” Jd Section 24-56-117(1)(c), 10B C.R.S. (1988), codifies the Colorado rule against enhanced value. The rule requires the state to disregard any change in the fair market value of the property caused by the public improvement for which the property is being acquired in determining just compensation for the property. § 24-56-117(1)(c).10 * We agree that the Mill’s actual use of the property did not constitute a nuisance, but that was precisely because The Mill complied with the CDH limitations. '0 The statute provides that Before the initiation of negotiations for acquisition of real property, an amount shall be established which it is reasonably believed is just compensation therefor, and such amount shall be offered for the property. In no event shall such amount be less than the approved appraisal of the fair market value of such property. App. 18 In the eminent domain action, the court of appeals found that the stipulation entered into by The Mill and CDH setting the fair market value of The Mill’s property in its contaminated state at zero was dictated by the rule against enhanced value and set aside the stipulation. Because application of the rule would limit The Mill’s compensation to the value of the property in its contami- nated state, the court concluded that the rule against enhanced value was contrary to the intent of UMTRCA and resulted in unfair and disparate treatment of the owners of designated sites. The Mill III, 868 P.2d at 1103. Specifically, the court found that the financing scheme of UMTRCA indicated an intent that property owners pay nothing for cleanup, and thus, for the state to collect the difference between the contaminated and decontami- nated property values would be contrary to the intent of the statute. Id.!! It found further that the Colorado Any decrease or increase in the fair market value of real property prior to the date of valuation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, shall be disregarded in deter- mining the compensation for the property. The owner of the real property to be acquired shall be provided with a written statement of and summary of the basis for the amount established as just compensation. Where appropriate, the just compensation for the real property acquired and for damages to remaining real property shall be separately stated. § 24-56-117(1)(c), 10B C.R.S. (1988). 11 The court of appeals also found it contrary to the intent of UMTRCA that site owners invariably would lose their initial App. 19 implementation scheme under UMTRCA resulted in dis- parate treatment of similarly-situated property owners, investment under the rule against enhanced value. The court erroneously assumed that application of the rule against enhanced value would dictate a finding of nominal or zero market value in condemnation actions pursuant to UMTRCA so that owners always would lose their initial investment in the property, as well as be forced to repurchase their property at fair market value after decontamination was completed. The rule against enhanced value requires only that the property be valued in its present condition without regard to any increase or decrease in value projected upon completion of the government project for which the property was condemned. See § 24-56-117(1)(c). It does not mean that a property owner will necessarily lose the initial investment in the property. As discussed infra, site acquisition is envisioned under UMTRCA in those instances where the initial purchase price of the prop- erty reflected on-site contamination. Presumably, the rational and informed site owner would not have purchased the site unless some use or value remained despite the contamination. The fair market value determined under the rule would reflect the more-than-nominal value of those uses. Moreover, if the site owner purchased the site at a price that reflected on-site con- tamination, the value determined under the rule would allow the owner to recover that initial investment. In this case, the value of the property was set at zero by stipulation of the parties; it was not dictated by state law. The Mill took what it thought was the best Strategic position on property value, and forfeited its initial investment as a result of that strategy. Neither the court of appeals’ prior decision in Department of Health v. Hecla Mining Co., 781 P.2d 122 (Colo. App. 1989), nor the rule against enhanced value allows the state to condemn a site and then pay less than fair market value of the Property at that time. Accordingly, we will address only whether it is consistent with UMTRCA to apply the rule against enhanced valuation to condemnation actions to the extent that it excludes compensation for any increased value resulting from remedial action by the government. App. 20 since those whose property is cleaned up by consensual agreement pay nothing, while property owners whose property is acquired by the state must repurchase their property at its market value in a decontaminated state. Id. The court of appeals declined to follow its prior decision in Department of Health v. Hecla Mining Co., 781 P.2d 122 (Colo. App. 1989), to the extent it was inconsistent with its ruling in this case. We do not agree. In addressing and rejecting the court of appeals’ analysis, we will examine first the alleged conflict between Colorado’s enhanced value statute and the fed- eral law. Then we will consider the equal protection implications caused by application of the rule against enhanced value. A. Inconsistency with the Federal Statute Under the Supremacy Clause of the United States Constitution, state statutes that conflict with federal stat- utes are invalid. Brubaker v. Board of County Comm'rs, 652 P.2d 1050, 1054 (Colo. 1982); Housing Auth. v. United States, 980 F.2d 624, 631 (10th Cir. 1992). Federal law preempts state law when Congress expresses clear intent to preempt state law; when there is outright or actual conflict between federal and state law; when compliance with both federal and state law is physically impossible; when there is an implicit barrier within federal law to state regulation in a particular area; when federal legisla- tion is so comprehensive as to occupy the entire field of regulation; or when state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. Frontier Airlines, Inc. v. United Air Lines, Inc., 758 App. 21 F. Supp. 1399, 1407 (D. Colo. 1989). However, exercise of federal supremacy is not to be presumed lightly. Brubaker, 652 P.2d at 1055. We must begin by assuming that the historic police powers of the state are not to be super- seded by any federal laws or regulations unless that congressional purpose is clearly shown. Dantus v. First Federal Savings & Loan Ass‘n, 502 F. Supp. 658, 660 (D. Colo. 1980). In construing statutes to make this determination of Congressional objectives in enacting UMTRCA, we must ive effect to the intent reflected in the language of the enactment and the legislative process. Colorado v. Idarado Mining Co., 916 F.2d 1486, 1494 (10th Cir. 1990). Congres- sional intent is determined primarily from the plain lan- guage of the statute, and secondarily from the statute’s legislative history. Mass v. Martin Marietta Corp., 805 F. Supp. 1530, 1534 (D. Colo. 1992). The court of appeals found that the Colorado rule against enhanced value is an obstacle to the accomplish- ment and execution of the objectives of UMTRCA. We do not agree. We find that both the plain language of UMTRCA and its legislative history indicate a legislative intent not inconsistent!2 with the Colorado rule against enhanced value which requires that property subject to condemnation proceedings be valued in its unimproved '2 Because Supremacy Clause analysis begins with the assumption that state regulation is not superseded by federal regulation, Brubaker, 652 P.2d at 1054, Dantus, 502 F. Supp. at 660, the court need not find that the federal and state statutes are consistent, only that they are not inconsistent. App. 22 state. Williams, 147 Colo. at 198-202, 363 P.2d at 173-75; § 24-56-117(1)(c). 1. The Language of the Federal Statute Turning first to the plain language of the statute, the stated purpose of UMTRCA is to clean up and stabilize uranium processing sites to alleviate the danger to the public posed by radiation emitted from mill tailings and other radioactive waste at such sites, 42 U.S.C. § 7901. To this end, the federal government “shall pay 90 per cen- tum of the actual cost of such remedial action, including the actual costs of acquiring such site (and any interest therein) .. . and the state shall pay the remainder of such costs from non-Federal funds.” § 7917(a). The act addresses two possible cleanup scenarios: cleanup with the consent of the property owner, section 7913(c), and cleanup accomplished after the acquisition of the site by the state in which the property is located, section 7914(a). In deciding whether to proceed by one method or the other, the sole factor enumerated in the statute to which the federal Secretary of Energy and the Nuclear Regulatory Commission must give consideration is the “prevention of windfall profits” to the property owner. Id. If the cleanup will result in a windfall to the property owner, the state will be directed to acquire the site, id., with the option to sell the decontaminated prop- erty back to the original owner at fair market value. § 7914(e)(2). If the state is not directed to acquire the site, the state may enter into a consent agreement with the property owner which will “releas[e] the United States of any liability or claim thereof” and “hold[] the United App. 23 States harmless against any claim... . arising out of the performance of any such remedial action.” § 7913(c)(2). UMTRCA thus distinguishes between Property owners to whom a windfall benefit would accrue and Property Owners to whom a windfall would not accrue in deter- mining which cleanup scenario to follow. The Mill argues that [t]he perceived ‘windfall’ is the cost associated with the remedial action undertaken by DOE which otherwise could have been borne by the property owner. However, [(UMTRCA’s] specific purpose is to obligate DOE to absorb these costs, since ‘but for’ the Federal contracts which 8ave rise to the tailings which contaminate these sites, the properties would likely be free from uranium contamination. According to The Mill, the admonition against windfall profits in section 7914(a) is merely an attempt to limit costs. It does not mandate differential treatment of prop- erty owners whose Property is remediated by consent and those whose Property is acquired by the state before remediation. UMTRCA does not define “windfall profits.” Neither the Department of Energy nor the Nuclear Regulatory Commission has issued regulations enunciating the fac- tors on which it bases its determination to require a state to acquire a processing site, or elaborating how “windfall profits” may be identified. Thus, we must interpret the term without Statutory or regulatory guidance. In reading a statute we are required to adopt an interpretation that gives “consistent, harmonious and sensible effect” to all of the Statute’s provisions. Colorado App. 24 State Bd. of Medical Examiners v. Saddoris, 825 P.2d 39, 42 (Colo. 1992) (citation omitted). Furthermore, the court must give words their commonly accepted and under- stood meaning. East Lakewood Sanitation Dist. v. District Court, 842 P.2d 233, 235 (Colo. 1992). The Mill’s interpretation fails to “sensibly” and “har- moniously” construe the statute. First, if the windfall profit addressed by UMTRCA is merely the cost of reme- dial action, including acquisition costs, then it would be impossible to consider “prevention” of windfall profits as required by section 7914, since all cleanup effort would result in some windfall to the property owner. The Secre- tary of Energy and the Nuclear Regulatory Commission could only consider “limitation” of windfall profits. Sec- ond, to treat “windfall profits” as the cost of cleanup, as The Mill recommends, would read consensual cleanup under section 7913(c) out of the statute. Since all remedial action would result in some windfall profit, prevention of which is the sole enumerated factor for consideration under section 7914(a), presumably the Secretary of Energy and the Nuclear Regulatory Commission would require acquisition of most, if not all, sites. Finally, The Mill’s interpretation also fails to acknowledge that prop- erty owners may benefit not only from avoiding the cost of cleanup (including future liability arising from on-site pollution), but also from the increased value of the prop- erty after the government-funded cleanup is complete. While the statute clearly is designed to require federal and state government to bear the cost of cleanup, there is no evidence that it was intended to provide these second- ary benefits to landowners as well. Accordingly, we must identify a satisfactory alternative construction. Ma 8 ah Sie lle le Cn iis cs App. 25 A “windfall” is commonly understood to mean “an unexpected or sudden gain or advantage.” Webster's Third New International Dictionary 2619-20 (1986). “Profit,” in the context of financial matters such as these, generally means the [sic] “the excess of returns over expenditure in a transaction or series of transactions.” Id. at 1811. Thus, “windfall profit” must occur Where a transaction pro- duces some unexpected excess of returns over expendi- tures. In the context of this Statute, the transaction in question must be the acquisition of property by the state since, under section 7914(a), it is “lijn determining whether to require the State to acquire a designated process- ing site or interest therein, [that] consideration shall be given to the prevention of windfall profits.” § 7914(a) (emphasis added). Under this definition, windfall profits would accrue to a property owner as a result of cleanup only where the property owner purchased the Property in its contami- nated state at a price which reflected the presence of contamination and then, without making any expendi- tures for cleanup, could resell the property, or interest therein, at a price reflecting an increase in value due to the cleanup. Such an increase in market value due to cleanup would necessarily be unexpected, and thus a “windfall,” because if government-funded cleanup plans had been publicly known, the market Price of the prop- erty in a contaminated state would have been comparable to that of similar, uncontaminated property. Not all cleanups would result in such a windfall to the property owner. For example, where the property Owner purchased the tract in an uncontaminated state App. 26 before the milling operations took place pursuant to fed- eral contracts, cleanup of the property merely returns the property to its state at the time of initial purchase.'> The same would be true where the property owner purchased the tract after the decision to take remedial action had been made or after remedial action had begun, so that the purchase price reflected the decontaminated value of the property. Presumably, in these circumstances the Secre- tary of Energy and the Nuclear Regulatory Commission would not require the state to acquire the processing site prior to performing remedial action. The rule against enhanced value is not inconsistent with UMTRCA’s policy of preventing windfall profits to the property owner. In fact, the rule furthers UMIRCA policy. If the property owner were allowed to collect the 13 The uranium mill tailings addressed under UMTRCA were produced by uranium milling operations under federal contracts. Because at the time milling operations were under- way the tailings were not believed to be a health hazard, federal cost-plus contracts allowed for only a very small expenditure for tailings disposal. Profit margins under the contracts did not accommodate the cleanup expenses now recognized as neces- sary to assure public safety. H.R. Rep. No. 1480(II) at 58, reprinted in 1978 U.S.C.A.A.N. 7477-78. Increased property value that accrues to these property owners as a result of remedial action does not constitute a windfall profit because (1) on-site hazardous contamination resulted in a decrease in property value after purchase of the site which offsets the increase in value created by cleanup; and (2) cost compensation calculated under federal cost-plus con- tracts during milling operations did not account for decon- tamination expenses. Governmental cleanup thus does not result in an unexpected double-benefit to these property owners. ens ‘ % Pr] a ¥ ; i 4 & Ed z § 4 i ; 3 4 FA i OS noah om dS det RIN App. 27 value of the property in its decontaminated state, the Property owner would not only be spared the expense of the cleanup, but would also receive the increase in mar- ket value resulting from the cleanup. While the statute does not require property owners to pay for the cleanup itself, as indicated by placing the full cost on the federal and state governments in section 7917(a), the rule against enhanced value assures that the property owner cannot collect through condemnation Proceedings the “windfall profits” that state acquisition of the property was intended to prevent. 2. The Legislative History of the Federal Statute The legislative history of UMTRCA does not define “windfall profits,” or address the criteria for acquisition of processing sites. However, nothing in the legislative history indicates that the Colorado rule against enhanced value is inconsistent with UMTRCA. In its “Section-by- Section Analysis and Committee Comments,” House Report No. 1480 states that the “affected State [shall] acquire the processing site before remedial action is initi- ated if such acquisition is determined appropriate by the Secretary and the NRC.” H.R. Rep. No. 1480(II) at 37, reprinted in 1978 U.S.C.A.A.N. 7464. The Report speci- fically indicates that “[s]uch acquisition is to be accom- plished pursuant to State law.” Id. This reference to state law indicates that Congress intended for the state to utilize the same policies and procedures in this context as it uses in other types of land acquisition. In Colorado, the rule against enhanced value is generally applicable to the acquisition of land by the state in other contexts. See App. 28 § 24-56-117 (“Any state agency or political subdivision of the state which acquires real property for a program or project for which federal financial assistance will be available to pay all or any part of the cost of such pro- gram or project shall comply with the following poli- cies:”); Williams, 147 Colo. at 198-202, 363 P.2d at 173-75. The committee also noted that where cleanup is accomplished by consent, the property owner will benefit from the volun- tary remedial action provided by this act. Clearly, the committee does not want to find that at some later date the United States is faced with a claim from such owner, his heirs, suc- cessors or assigns concerning such remedial action or arising from such action. H.R. Rep. No. 1480(II) at 37, reprinted in 1978 U.S.C.A.A.N. 7464. Thus, the committee viewed the waiver of liability that is part of a consent agreement to be at least partial consideration for the benefit that accrues to the property owner. Under the interpretation urged by The Mill, the property owner would receive not only the benefit of the cleanup and the attendant increase in property value, but would also avoid providing a waiver releasing the United States from liability which otherwise would have been required if the site had been decontaminated under a consent agreement. Such an interpretation would create every incentive for a property owner to resist consensual cleanup, force the state to condemn the processing site in order to perform remedial action, and thus drive up program costs. Since the com- mittee was “concerned about the cost of acquisition under this section and expect[ed] that it be utilized only App. 29 when necessary,” H.R. Rep. No. 1480(II) at 38, reprinted in 1978 U.S.C.A.A.N. 7465, such a construction is clearly contrary to the legislative intent of UMTRCA as expressed in the Act’s legislative history. Application of the rule against enhanced value would eliminate this adverse incentive and thus be more consistent with Con- gressional intent. B. Equal Protection The court of appeals found that applying traditional condemnation rules, such as the rule against enhanced value, to property acquisitions under UMTRCA resulted in disparate treatment of similarly-situated property owners. This result, the court found, is “further evidence that the traditional enhancement rule was not intended to apply under UMTRCA.” The Mill III, 868 P.2d at 1105. Because we find that property owners whose property is subject to condemnation proceedings and property owners whose property is subject to consensual remedial cleanup are not similarly situated, we disagree. The equal protection guarantees under the Colorado and United States constitutions assure like treatment of all who are similarly situated. Colo. Const. art. II, § 25; U.S. Const. amend. 14.; Mayo v. National Farmers Union Property and Casualiy Co., 833 P.2d 54, 57 (Colo. 1992). If persons alleging disparate treatment are not similarly situated, the equal protection challenge to a statute must fail. Western Medical Lath, Inc. v. Acoustical & Constr. Sup- ply, Inc., 851 P.2d 875, 880 (Colo. 1993). App. 30 As discussed above, the decision to acquire property, as opposed to entering into a consensual arrangement for cleanup, is based on the prevention of windfall profits to the property owner. By agreement with the federal gov- ernment, the state is required to acquire only those pro- cessing sites where the Secretary of Energy and the Nuclear Regulatory Commission already have made a threshold determination that the owners would stand to make a windfall profit if remedial action were to proceed under a consensual agreement. This finding alone indi- cates that the two groups of property owners are not similarly situated. Accordingly, any equal protection challenge to the application of the rule against enhanced value must fail. After this examination of the language and legislative intent of UMTRCA, we conclude that the rule against enhanced value codified in section 24-56-117(1)(c) is fully consistent with Congressional intent in enacting UMTRCA. IV. For the foregoing reasons, we find that 1983 corre- spondence between CDH and The Mill did not constitute a regulatory taking in violation of the I'nited States and Colorado constitutions. We also find tl.at application of the Colorado rule against enhanced value in condemna- tion proceedings is not contrary to the intent of UMTRCA, and thus, that the stipulation of zero value entered into by The Mill and CDH may stand. Accord- ingly, we (1) reverse the court of appeals’ holdings on both issues, (2) return the case to the court of appeals for App. 31 remand to the district court with instructions to dismiss The Mill’s regulatory taking and estoppel claims, and (3) return the case to the court of appeals for reinstatement of the judgment of the Gunnison County District Court granting title to the property to CDH. ERICKSON, J., specially concurs. SCOTT, J., dissents. State v. The Mill, No. 93SC418 JUSTICE ERICKSON specially concurring: We granted certiorari to review both the regulatory taking and eminent domain rulings in The Mill v. State of Colorado, Department of Health, 868 P.2d 1099 (Colo. App. 1993).14 I agree with the majority that the court of appeals erred in finding a regulatory taking of The Mill’s prop- erty. I also agree that the enhanced value statute, section 24-56-117(1)(c), 10B C.R.S. (1988), is dispositive in this case in determining whether the decontaminated value of a property should be considered for purposes of eminent domain pursuant to the Uranium Mill Tailings Radiation Control Act (UMTRCA), 42 U.S.C. §§ 7901-7942 (1993 4 We previously reviewed inverse condemnation and reg- ulatory taking issues in State of Colorado, Department of Health v. The Mill, 809 P.2d 434 (Colo. 1991) and remanded to the district court for further consideration of promissory estoppel and reg- ulatory taking claims asserted by The Mill. App. 32 Supp.). I concur in the majority opinion and write sep- arately on the applicability of the enhanced value rule in this case. | The 61-acre parcel of land (property) at issue in this case consists of a 25-acre mill yard and a 36-acre tailings pile. Pursuant to an Atomic Energy Commission (AEC) license, the property was operated as a uranium process- ing mill and for storage of uranium mill tailings from the late 1950s until 1962. In 1968, the AEC delegated regula- tory authority of the radioactive materials and the AEC license to the State of Colorado, which terminated the license for the property in issue that adjoins the Gunnison Airport. The Mill purchased the property in 1973. At that time, the Colorado Department of Health (CDH) had imposed no restrictions on the use of the property. Radio- active contamination of the mill yard was found in 1976. In 1978, Congress enacted UMTRCA to decontaminate twenty-two inactive uranium mills to protect the public from the health hazards associated with the radioactivity of uranium mills. After radioactive contamination of the property was confirmed in 1980 and 1982, The Mill leased the property to O.C. Coal Company in 1983. The Mill notified CDH of the lease agreement, and CDH responded with a letter advising The Mill and O.C. Coal of safety precautions that were recommended because of the radioactive contamination of the property. App. 33 O.C. Coal terminated the lease in 1984. The Mill contends that the CDH letters setting forth safety require- ments caused O.C. Coal to terminate the lease and brought an action against CDH in 1986, claiming a regu- latory taking. While the regulatory takings case was on appeal, CDH initiated a condemnation proceeding in accordance with UMTRCA and the applicable Colorado statute. § 25-11-303(1)(d), 11A C.R.S. (1989 & 1994 Supp.). In the condemnation action under UMTRCA, the parties stipulated that the market value of the property in its contaminated state was zero, and the trial court vested title to the property in CDH. The Mill appealed both the regulatory taking and the condemnation decisions to the court of appeals. The court of appeals consolidated the regulatory tak- ings case with the eminent domain case. In the consoli- dated appeal, the court of appeals held that a regulatory taking had occurred and set aside the stipulation of the parties that the fair market value of the property in its contaminated state was zero. On remand, the court of appeals directed that fair market value be determined based on the decontaminated value of the property, and ordered a new determination of just compensation. II In Department of Health v. Hecla Mining Co., 781 P.2d 122, 125 (Colo. App. 1989), the court of appeals stated: “We do not find support in the federal law for [the] assertion that the purpose of [UMTRCA] is to meet an App. 34 obligation to remedy government-initiated contamina- tion.”15 The legislative history of UMTRCA reflects a congressional intent not to overburden either the federal or state governments with the costs of clean-ups.!© Rather than protecting the investment of the property owner, Congress’ concern was to minimize the costs of the pro- gram in cleaning up radioactive uranium sites.!” 15 The court of appeals in Hecla subsequently stated: The [UMTRCA] ... expressly set forth, as the purpose for the legislation, the protection of the public health, safety, and welfare from the potential and significant radiation health hazards of uranium mill tailings... . This is an undisputable public purpose. . . Id. (citations omitted); see 42 U.S.C. § 7901(b)(1) (stating that the purpose of the UMTRCA is “to stabilize and control . . . tailings in a safe and environmentally sound manner and to minimize or eliminate radiation health hazards to the public... . ”). 16 The UMTRCA divides the costs of decontamination between the federal government (90%) and state government (10%). 42 U.S.C. § 7917(a). In contrast, the Comprehensive Envi- ronmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675 (1993 Supp.), imposes lia- bility upon “the owner and operator of a... facility,” or “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous subs- tances were disposed of... . ” §§ 9607(a)(1)-(2). The Mill is also subject to federal legislation that imposes liability on mill owners for non-compliance with radon emis- sion standards. 40 C.F.R. § 61.222(b) (1993). The cost of decon- tamination of The Mill property has been estimated at $40 million. 17 Such a concern eliminates the disparate appearance of the two decontamination options provided in UMTRCA. A con- taminated site may be cleaned up either (1) through an agree- ment with the owner, 42 U.S.C. § 7913(a), or (2) by purchase or condemnation when the Secretary of Energy, with the CTS 2 Cae MT UN, AMEE ION ME, © Ig or fo App. 35 Hecla set out the key elements of the legislative his- tory and stated: The legislative history shows that the Radi- ation Control Act was enacted due to concern over the health threat posed by unstable and uncontrolled inactive uranium mill tailings and not to meet any legal obligation on the part of the federal government to remedy the hazard- ous situations at such sites. Concern over costs of the program prompted Congress to provide for state acquisition of mill sites, particularly if decontamination would result in windfall profits to an owner who retained the site after decontamination. Hecla, 781 P.2d at 124. The court of appeals in Hecla held that in a condemnation proceeding, property must be valued in its present condition, without regard to the governmental purpose supporting the necessity for con- demnation or the radioactive contamination of the prop- erty. Accord, Williams v. City and County of Denver, 147 Colo. 195, 363 P.2d 171 (1961); § 24-56-117(1)(c). In a condemnation proceeding, the property taken is valued at its fair actual cash market value at the time of concurrence of the Nuclear Regulatory Commission, determines that decontamination would lead to “windfall profits” for the owner. 42 U.S.C. §§ 7914(a) and (e)(2). The two options are intended to reduce the costs of the program to the public by preventing the receipt of “windfall profits” to landowners. Allowing owners such as The Mill to recover the uncontaminated value of their land, after purchas- ing the property in a contaminated condition, would provide the owners a windfall and would increase the cost of the pro- gram, contrary to congressional intent. App. 36 trial or when the property is taken. § 38-1-114, 16A C.R.S. (1982 & 1994 Supp.); see Mulford v. Farmers’ Reservoir & Irrigation Co., 62 Colo. 167, 161 P. 301 (1916). Market value is the price a property will bring when it is offered for sale by one who desires but is not obligated to sell, and is bought by one who desires, but is under no necessity to buy the property. Dep’t of Highways v. Schuloff, 167 Colo. 72, 445 P.2d 402 (1968). The value of the land taken is based on present conditions and not on the future devel- opment of the property. Id. When Congress enacted UMTRCA, it directed that acquisitions be accomplished pursuant to state law. H.R. Rep. No. 95-1480 (II), 95th Cong., 2d Sess. at 37 (1978), reprinted in 1978 U.S.C.C.A.N. 7464. When the Colorado General Assembly agreed to the financial commitments of UMTRCA and authorized the CDH to participate in_its implementation, it specifically directed that such acquisi- tions be conducted pursuant to the eminent domain laws of Colorado. § 25-11-303(1)(d). In particular, the General Assembly directed that the enhanced value criteria in section 24-56-117(1)(c), be followed when condemning property under UMTRCA. Section 24-56-117(1)(c) pro- vides in relevant part: “Any decrease or increase in the fair market value of real property prior to the date of valuation caused by the public improvement for which such property is acquired . . . shall be disregarded in determining the compensation for the property.” Section 24-56-117(1)(c) is the statutory codification of the rule against enhanced value. See Williams, 147 Colo. at 199-200, 363 P.2d at 173-74. The court of appeals dis- missed section 24-56-117 as “general policy” that must yield to what the court stated was the “ends” of App. 37 UMTRCA (protecting the owner’s investment). The Mill, 868 P.2d at 1106. The UMTRCA is not an exception to the enhanced value rule, but rather incorporates the rule into its frame- work. In Hecla, the court of appeals held that evidence of the decontaminated value of the land, “because it fails to reflect the actual condition of the property at the time of the taking, is necessarily speculative or prospective and thus inadmissible.” Hecla, 781 P.2d at 126. The court of appeals in the present case declared that Hecla was dis- positive of value determination of fair market value and of the issues raised at the immediate possession hearing, but held that the enhanced value rule in Williams was inapplicable and that Hecla would not be followed as inconsistent with the scheme established by UMTRCA. The court of appeals misinterpreted UMTRCA, and erred in not following Hecla.'§ The enhanced value statute is dispositive of the con- demnation issue. The contaminated value of the land was zero. The Mill, in acquiring the property, knew of the property’s prior use as a uranium processing mill, which contaminated both the building and the soil. The Mill was effectively limited in the use it could make of its land because of radioactive contamination. Such a limitation on use is not compensable, however, because the only value of The Mill’s property would be as the result of 18 Judge Smith authored the opinion of the court in Hecla and the court of appeals opinion in this case, but the other members of the panel were not the same. The court of appeals panel in this case erred in applying a different interpretation of the UMTRCA than a different panel employed in Hecla. App. 38 improvements effected by a clean-up that would restore the land to its former condition. The property was con- taminated when it was acquired by The Mill. Because the cost of decontaminating the property exceeds the value of the property after the clean-up, the value of the property is zero, and the rule against enhanced value is applicable. Il The cost of decontaminating The Mill’s property is borne by the state and federal governments. A consider- ation of the property’s decontaminated state for purposes of calculating fair market value would grant The Mill more than it acquired when it purchased the property in 1973, and would grant the landowner “windfall profits,” profits which Congress intended to avoid in enacting UMTRCA. Because an application of the rule against enhanced value is in accordance with congressional intent and the intent of the General Assembly, the court of appeals erred in ordering a determination of the property’s decontami- nated value and in not following Hecla. The court of appeals also erred in setting aside the parties’ stipulation that the property had no value in its present condition. State of Colorado v. The Mill, No. 935C418 JUSTICE SCOTT dissenting: The majority holds that The Mill, the owner of real property, did not have “reasonable investment-backed App. 39 expectations” as to the contemplated use of the “mill yard” because “an extensive regulatory scheme [was] in place at the time of investment,” maj. op. at 999-1000, and, as a consequence, any taking by the State does not require compensation. Because I believe such a rule impermissibly blurs the distinction between takings of real and personal property and improperly permits tak- ings without compensation in violation of constitutional mandates, and because I believe the record does not support a conclusion that The Mill’s expectations were “highly unreasonable,” I respectfully dissent. Moreover, because the lower court’s determination that The Mill was deprived of its entire economic interest in the property is supported by the record, I would hold the actions of the State compensable, assuming The Mill can establish a regulatory taking premised upon its com- pliance with directives set forth in agency letters and similar communications. Accordingly, because the anal- ysis I would employ requires that we examine the issues the majority fails to address, I respectfully dissent.!9 I. In 1973, respondent, The Mill, purchased a lot in Gunnison, Colorado, which had previously been used as a uranium mill and disposal site for uranium mill tail- ings. The lot was divided into two separate parcels: the “tailings pile” and the “mill yard.” Prior to purchasing 19 I do not address the issues raised in the eminent domain action because it would be premature in light of my analysis of the takings issue. App. 40 the lot, The Mill searched the records of the Colorado Department of Health (CDH) and discovered that in 1971, the State of Colorado had removed the mill yard from licensure, authorized its unrestricted use, and considered the mill yard not contaminated and free for lawful uses such as those contemplated by The Mil11.2° Based on its review of the information in CDH’s files, which indicated that the mill yard parcel was decontaminated and safe for unrestricted use, The Mill purchased the subject property in July of 1973. From 1973 to 1978, CDH conducted various tests of the tailings pile located on property adjacent to The Mill. At some point, CDH also conducted tests of the mill yard. In 1976, CDH found radioactive contamination through- out the mill yard. At that time, CDH informed The Mill of its finding and advised it to take precautionary measures with regard to the mill yard. Both the mill yard and the tailings pile were designated for radiation clean-up under the Uranium Mill Tailings Radiation Control Act of 1978, Pub. L. No. 95-604, 42 U.S.C. § 7901 (1991) (“UMTRCA”"). The Mill was informed that it was a “candidate for reme- dial action” in 1978. 20 The mill yard had been licensed in 1964 by the Atomic Energy Commission (AEC). Pursuant to the license, the prop- erty was authorized: “[flor storage only of the contaminated equipment and buildings constituting the Gunnison uranium mill. This license does not authorize removal, use, transfer or decontamination of the equipment and/or buildings in any manner.” In 1968 the license was amended to allow for transfer of contaminated equipment to persons not possessing an AEC license provided that decontamination was accomplished in accordance with the AEC standards. Decontamination of equip- ment and buildings was also authorized. App. 41 In 1983, The Mill notified CDH that it had leased the mill yard to O.C. Coal. CDH then sent several letters to both The Mill and O.C. Coal informing them of the “exis- ting mill yard radioactive contamination” and the limited uses to which the mill yard could be put. The trial court found that there had been a taking because of the letters and other actions of CDH, and awarded compensation in the amount of $200,909. based on a total loss of use, rather than a loss of property valuation. The court of appeals affirmed the trial court’s ruling that the CDH correspondence amounted to a total regula- tory taking. A majority of this court now reverses, and, in effect, ignores the distinction so clearly drawn between real and personal property in federal takings jurispru- dence and, in its place, holds that the adoption of “an extensive regulatory scheme” trumps the fundamental constitutional right to just compensation as a conse- quence of a government taking. It is to that conclusion of the majority that I take exception. II In Lucas v. South Carolina Coastal Council, ___ U.S. __, 112 S. Ct. 2886, 120 L.Ed.2d 798 (1992), the United States Supreme Court reaffirmed its holding in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), where Justice Holmes, writing for the Court, opined that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Lucas, __ U.S. at __, 112 S.Ct. at 2893 (citing Mahon, 260 U.S at 415, 43 S.Ct. at 160). Writing for the majority in Lucas, Justice Scalia acknowledged that the App. 42 seventy years of Supreme Court takings jurisprudence has been essentially by ad hoc, factual inquiries. The Court has, however, found regulatory takings “compens- able without case-specific inquiry into the public interest advanced in support of the restraint” in instances in which it has “found . . . regulation [by the state] denied all economically beneficial or productive use of land.” Id. (citing Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980); Nollan v. California Coastal Comm’n, 483 U.S. 825, 834, 107 S.Ct. 3141, 3147, 97 L.Ed.2d 677 (1987); Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 495, 107 S.Ct. 1232, 1247, 94 L.Ed.2d 472 (1987); Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 295-96, 101 S.Ct. 2352, 2370, 69 L.Ed.2d 1 (1981) (footnote omitted)). In fact, the Court has categorically held that takings which deny all economically beneficial use require com- pensation. Noting this categorical rule, Justice Scalia sug- gested the justification for the rule was “simply, as Justice Brennan suggested, that total deprivation of beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation.” Lucas, __ U.S. at __, 112 S.Ct. at 2894 (citing San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621, 652, 101 S.Ct. 1287, 1304, 67 L.Ed.2d 551 (1981) (Brennan, J., dissenting)). Essentially, then, Justice Scalia opined, “when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” Lucas, ___ U.S. at __, 112 S.Ct. at 2895. On appeal to this court, CDH argued, and the major- ity agreed, that the court of appeals erred by failing to Krastaaieateiti App. 43 apply the exception stated in Lucas that no compensation is due if the restrictions merely duplicate the result that could have been achieved in the courts through nuisance or property law. Lucas, __ U.S. at __, 112 S.Ct. at 2901. That exception only applies, however, where the “owner is barred from putting land to a use that is proscribed by those existing rules or understandings.” Id. The Lucas Court established that “[w]here the State seeks to sustain regulation that deprives land of all economically benefi- cial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with.” Id. at__, 112 S.Ct. at 2899 (emphasis added). At the time The Mill purchased the land in 1973, the contemplated use of the land (stor- age) was not proscribed by any rules or understanding that existed at that time. The anticipated investment- backed use of The Mill property was not unlawful, since the State itself had declared the property authorized for unrestricted use. By its actions in 1983, however, the State was in effect changing the uses and hence, in effect, understandings that reflect a more developed under- Standing of the hazards of radiation - all of which occurred years after the purchase. Thus, the Lucas excep- tion that “the proscribed use interests were not part of [The Mill’s] title to begin with,” i.e., in 1973, has no application to the case at hand. Importantly, despite its early infatuation with “harm- ful or noxious uses,” or reliance upon nuisance law, the Lucas Court reversed the South Carolina Supreme Court because its judgment was premised upon a determination that the property owner’s proposed use was a nuisance, App. 44 harmful to the public, and, as a consequence, would render a taking not subject to compensation. Lucas, __ U.S. at __-__, 112 S.Ct. at 2897-98. Instead, the Court reasoned, “noxious-use logic cannot serve as a touchstone to distinguish regulatory ‘takings’ - which require com- pensation — from regulatory deprivations that do not require compensation.” Id. at __, 112 S.Ct. at 2899. Con- tinuing, the Court held: “A fortiori the [state’s] recitation of a noxious-use justification cannot be a basis for depart- ing from our categorical rule that total regulatory takings must be compensated.” Id. (emphasis added). The majority fails to take this holding into account.?! 21 The majority in this case emphasizes principles of nui- sance law in its holding, stating “under Colorado common law, land owners have a duty to prevent activities and conditions on their land from creating an unreasonable risk of harm to others.” Maj. op. at 1002. The majority sets forth further, “[i]n accord with ordinary intuition, government need not pay even in complete takeover or destruction if the latter is justified by the owners insistence on using his property to injure other people or their property.” Maj. op. at 1001 (citing Laurence H. Tribe, American Constitutional Law 593 (New York 1988)). In the nuisance cases relied on by the majority it was the conduct of the owner of the property that caused the nuisance, not the character of the property itself, over which the owner had no control. In the case at bar, however, The Mill is not putting its property to any noxious use at all — it is merely using it as a storage facility. The Mill is not engaging in any act that makes the property itself dangerous; the property is already dangerous because it is contaminated with radiation. App. 45 Il The United States Supreme Court has identified sev- eral factors that should be taken into account when deter- mining whether a governmental action amounts to a taking. Among those factors are “the character of the governmental action, its economic impact, and its inter- ference with reasonable investment-backed expecta- tions.” Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 83, 100 S.Ct. 2035, 2042, 64 L.Ed.2d 741 (1980). I would agree with the majority that the reasonable investment-backed expectations of the regulated party is a dispositive factor in this case. I would disagree, however, with the major- ity’s conclusion that The Mill’s expectations in 1971 were unreasonable, in light of the CDH determination that the property was not contaminated and was available for unrestricted use. With respect to owner expectations, the Lucas Court stated: Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner’s estate shows that the proscribed use interests were not part of his title to begin with. This accords, we think, with our “takings” juris- prudence, which has traditionally been guided by the understandings of our citizens regarding the content of and the State’s power over the “bundle of rights” that they acquire when they obtain title to property. Lucas, ___ U.S. at ___, 112 S.Ct. at 2899 (emphasis added). Continuing the concept of owner expectations, the Court noted a distinction between personalty and realty: App. 46 And in the case of personal property, by reason of the State’s traditionally high degree of control over commercial dealings, he ought to be aware of the possibility that new regulation might even render his property economically worth- less. .. . In the case of land, however, we think the notion . . . that title is somehow held subject to the “implied limitation” that the State may subsequently eliminate all economically valu- able use is inconsistent with the historic com- pact recorded in the Takings Clause that has become part of our constitutional culture. Where “permanent physical occupation” of land is concerned, we have refused to allow the govern- ment to decree it anew (without compensation) no matter how weighty the asserted “public interest” involved. . . . We believe similar treatment must be accorded confiscatory regulations, i.e., regulations that prohibit all economically beneficial use of land. Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself . . . already place[d] upon land ownership. Id. at __-__, 112 S.Ct. at 2899-900 (citations and foot- notes omitted) (emphasis added). The Court’s analysis is consistent with the sharp distinction historically drawn between the treatment of real property and personal property. See Property Tax Administrator v. Production Geo- physical, 860 P.2d 514, 519 (Colo.1993). For example, we apply the statute of frauds to interests in real property but not to interests in personal property (§ 38-10-108, 16A C.R.S. (1963)) and specific performance is generally directed in contracts concerning the sale of land but not in contracts concerning personal property. See, e.g., Atchison v. City of Englewood, 193 Colo. 367, 568 P.2d 13 En cicac tb Sle lt: DS) OPS. ha Rifas 2A 2 Re a With ott Pp ee ee ee Lee App. 47 (1977); Radetsky v. Palmer, 70 Colo. 146, 199 P. 490 (1921). The basis for drawing such a distinction is that every parcel of real property is unique. See Mt. Sneffels Co. v. Estate of Scott, 789 P.2d 464, 466 (Colo.App.1989). Hence, when the property interest is that associated with the ownership of land, as opposed to personalty, our takings analysis must be guided by the landowner’s understand- ings regarding the bundle of rights he or she acquires with the title to the property. Id. ___ U.S. at __, 112 S.Ct. _at 2899. To the contrary, here, the majority assumes that the existence of a comprehensive regulatory scheme requires that we impute to land owners at the time of purchase, today’s knowledge of the harm caused by radi- ation. Such owner expectations are unreasonable years before the effects of radiation are fully understood; the majority’s position does not comport with our previous treatment of owner expectations. The inconsistency of the majority’s position is reflected by its statement in foot- note 4. Maj. op. at 1000 n.4.?2 22 The majority asserts that “expectations of unregulated use are unreasonable when an extensive regulatory scheme is in place at the time of the investment.” Maj. op. at 1000. The picture drawn by the majority is no different, however, from a Situation in which property is acquired for permissible use under existing zoning ordinances and is subsequently “taken” by a change of zoning ordinances within the existing regulatory scheme. Yet it is undisputed that in that situation compensation is required. See, e.g., Cottonwood Farms v. Board of County Comm'rs of Jefferson County, 725 P.2d 57, 60 (Colo.App.1986); see also Gold Run, Ltd. v. Board of County Comm'rs, 38 Colo.App.44, 46, 554 P.2d 317, 319 (1976) (when zoning is confiscatory it rises to a “taking” of private property requiring compensation). App. 48 There have been three important cases decided in this jurisdiction which deal with the concept of owner expectations. See Ford Leasing v. Board of County Comm'rs, 186 Colo. 418, 528 P.2d 237 (1974); Nopro Co. v. Cherry Hills Village, 180 Colo. 217, 504 P.2d 344 (1972); Gold Run, Ltd. v. Board of County Comm'rs, 38 Colo.App.44, 554 P.2d 317 (1976). In each of these three cases, the harm was self- inflicted. For example, in Nopro, a zoning case, the court held “Nopro’s land investment was made in full knowl- edge of the zoning limitations. [t took the calculated risk that it could break the zoning use barrier and thereby double the profit from its investment.” Nopro, 180 Colo. at 227, 504 P.2d at 349. The court concluded “if hardship exists . . . it was incurred voluntarily by the choice of Nopro and was self-inflicted.” Id. Likewise, in Ford Leas- ing and Gold Run, the court emphasized the fact that the owner bought the property having full knowledge of existing restrictive zoning, thus rendering a hardship of self-inflicting. In this case, the majority asserts that The Mill was on notice that the radioactive materials present on the prop- erty were highly regulated at both the state and federal level, stating “the facts stipulated to by the parties in the regulatory taking action indicated that the entire prop- erty, including the mill yard, had been subject to federal licensing and regulation since 1962 due to the presence of radioactive contamination.” Maj. op. at 1000. The major- ity maintains that even in 1973, when The Mill purchased the lot, there “existed an awareness that the hazards posed by radiation were potentially severe.” Id. The majority’s observation fails to fairly take into account two important realities: (1) in 1973, the extent of the potential App. 49 hazards posed by radiation was not fully understood; and (2) The Mill had no knowledge of the site’s contam- ination at the time of its purchase due to its reliance upon CDH findings that the mill yard was uncontaminated and available for uses contemplated by The Mill.23 These and other facts found by the trial court cannot be ignored. Where the findings of the trial court are supported by the record, those findings must be accepted on review unless they are clearly erroneous. M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1384 (Colo.1994). Because we have consis- tently disapproved of the substitution of new factual findings by reviewing courts for those made by the trial court, Pace v. Clark, 197 Colo. 306, 313, 592 P.2d 792, 796 (1979), and because the record clearly supports the find- ings of the trial court, it would be inappropriate on review to fail to take such facts into consideration. The facts of this case deal with what was described during the trial as “a regulatory framework which has evolved over time to deal with our increase in knowledge of radiation and its dangers.” As found by the trial court, the need to clean up areas such as the Gunnison uranium mill site was not “an overriding concern” in the early 1970’s. Testimony shows that in 1971, cleanup efforts were done related to buildings and equipment, with an emphasis at that time on alpha contaminations. That same testimony indicates that since 1971, concerns have 2” The trial court held that The Mill “knew there had been a uraniuin mill on that site; and knew what was still there; that is to say, the tailings pile. The [Mill] did not know, at the time that it purchased, that there was radioactive contamination on the mill site itself.” This finding is supported by the record. App. 50 grown for other types of radiation contamination, includ- ing radon contamination, radon progeny called radon daughters and gamma radiation. Although there were proper tools and equipment for testing for these types of other radiation problems in 1971, there was not a suffi- cient concern at that time for the dangers from these other radiation hazards. Thus, they were not part of the examination that was done prior to the delicensure in 1971. In fact, testimony indicated that in 1971, when the property in question was removed from licensure, CDH did not even consider it important enough to regulate the tailings pile, let alone the mill yard. Today, on the other hand, according to testimony which was introduced at trial, radiation is considered potentially harmful in any degree. Before purchasing the property in 1973, The Mill fully researched the possibility of contamination on that site by reviewing CDH files in February of 1973. The Mill found that the site had been regulated at one time, but that the State had delicensed the parcel, representing that it was not contaminated, and authorizing its unrestricted use. After regulatory examination, the State demon- strated its approval of the storage use contemplated by The Mill, as well as any other reasonable uses. The record reflects that The Mill purchased the property based on an expectation created by the government. Given the fact that “scientific knowledge concerning the hazards of radiation was not as sophisticated as it is now,” maj. op. at 1000, the State’s representations were conceivable. It follows that The Miill’s reliance on those representations was reasonable. Thus, in 1973, despite the fact that the mill yard remained subject to federal regulation, The Casals aa iis soi Nal 4 errs tates App. 51 Mill’s contemplated use of the property for storage, a use also contemplated by government officials after regula- tory examination, was reasonable. It is not disputed that the mill yard is contaminated and should be regulated by the state. The issue comes down to who should bear the cost of the government’s intervention — the state or the private party. When a citizen relies on government records and the government later changes its position, the only logical solution is for the government to bear any costs involved. IV I would therefore find that the investment-backed expectations of The Mill based upon information from CDH were not highly unreasonable. Since the trial court’s findings with respect to the remaining material facts are supported by the record, I would find a potentially com- ~pensable taking requiring that we determine issues not reached by the majority. For the foregoing reasons, I respectfully dissent. App. 52 APPENDIX B THE MILL, Plaintiff-Appellant, v. STATE of Colorado, DEPARTMENT OF HEALTH, Defendant-Appellee. THE MILL, Plaintiff-Appellee and Cross-Appellant, v. STATE of Colorado, DEPARTMENT OF HEALTH, Defendant-Appellant and Cross-Appellee. DEPARTMENT OF HEALTH, State of Colorado, Petitioner-Appellee, v. THE MILL, Respondent-Appellant. Nos. 87CA0502, 87CA0838 and 91CA0770. Colorado Court of Appeals, Division II. April 22, 1993.* Rehearing Denied June 10, 1993. Certiorari Granted March 7, 1994. Owner of uranium-contaminated mill site brought action against Department of Health alleging inverse con- demnation and regulatory taking. The District Court of the City and County of Denver, H. Jeffrey Bayless, J., awarded owner damages for temporary regulatory taking but dismissed claim for inverse condemnation. The Court * Prior opinion announced December 31, 1992 was With- drawn. Petition for Rehearing of The Mill Granted. Petition for Rehearing of The State of Colorado Denied. App. 53 of Appeals, 787 P.2d 176, reversed and remanded. Cer- tiorari was granted. The Supreme Court, 809 P.2d 434, reversed and remanded. On remand, case was consoli- dated with owner’s appeal of order by the District Court, Gunnison County, Thomas J. Goldsmith, J., condemning property under Uranium Mill Tailings Radiation Control Act (UMTRCA). The Court of Appeals, Smith, J., sitting by assignment, held that: (1) in valuing properties desig- - nated under UMTRCA for purpose of determining just compensation in condemnation proceeding for remedial decontamination operations, rule against enhanced value does not apply; (2) stipulation which applied enhanced value rule was void as being contrary to law; and (3) trial court properly analyzed regulatory taking issue. Affirmed in part and reversed and remanded in part. Holley, Albertson & Polk, P.C., George Alan Holley, Eric E. Torgersen, Golden, for plaintiff-appellant, plain- tiff-appellee and cross-appellant, and respondent-appel- lant. Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Jerry W. Goad, First Asst. Atty. Gen., Denver, for defendant-appellee, defendant-appellant and cross-appel- lee, and petitioner-appellee. Opinion by Judge SMITH**. ** Sitting by assignment of the Chief Justice under provi- sions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S. (1988 Repl.Vol. 10B). App. 54 In an initial consolidated appeal (87CA0502, 87CA0838), The Mill, a partnership, appealed the trial court’s dismissal of its claim in inverse condemnation against the Department of Health (State), and both par- ties appealed the trial court’s award to The Mill of $200,000 in damages for what the court determined to be a temporary regulatory taking. In that appeal, we reins- tated The Mill’s inverse condemnation claim against the State. The Mill v. State, 787 P.2d 176 (Colo. App.1989). However, on certiorari review, the Supreme Court reversed that ruling, and the matter is now before us on remand. State of Colorado v. The Mill, 809 P.2d 434 (Colo.1991). In addition to the matters on remand, we have con- solidated The Mill’s appeal of the State’s condemnation of The Mill property (91CA0770) under its newly acquired authority to take, by eminent domain, proper- ties which have been designated under the Uranium Mill Tailings Radiation Control Act, 42 U.S.C. §§ 7901 to 7942 (1988) (UMTRCA) as eligible for remedial action See § 25-11-303(1)(d)(III), C.R.S. (1989 Repl.Vol. 11A). As to this latter appeal (91CA0770), we reverse the trial court’s judgment and remand the cause for further proceedings. In light of our disposition of the appeal in the emi- nent domain proceeding, the damage claim issues based upon “promissory estoppel” and “regulatory taking” the- ories are largely subsumed in that decision. We arrive at that conclusion because, even if there were a regulatory taking or if a promissory estoppel had arisen, the specific monetary damages arising therefrom could not exceed App. 55 the fair market value of the property. Thus, since the State will be required to pay the total fair market value of the property in the eminent domain proceeding, the issues in the other two cases are rendered moot, except as to the question concerning whether a regulatory taking occurred and, if so, when it occurred and the effect of such a taking upon the condemnation award. We affirm the trial court’s findings and conclusion that a total regu- latory taking occurred upon cancellation of the coal com- pany lease in May of 1984. The property at issue here consists of a 61-acre parcel that was, essentially, divided into two parts: The mill yard (roughly 25 acres) and the tailings pile (approx- imately 36 acres). The property was operated as a ura- nium and uranium mill tailings disposal site in the late 1950s and until 1962. This activity left the property and the buildings and equipment located on the property contaminated with radioactive material. Milling operations were originally conducted pur- suant to a license issued by the Atomic Energy Commis- sion (AEC) which, after milling operations ceased, was reissued to permit only the storage on the property of past mill tailing products and contaminated equipment and buildings. The permit was again amended in 1968 to allow the transfer of decontaminated equipment. Also in 1968, the State was delegated authority by the AEC to regulate radioactive materials formerly under the juris- diction of the AEC. In 1971, the State delicensed the mill yard and the property was authorized for unrestricted use. App. 56 In 1973, after reviewing all available governmental records regarding the property and discovering the fore- going information relative to the status of the property, The Mill purchased the entire 61 acres. In 1978, as a result of the growing awareness of the potential public health hazards presented by uranium mill tailings, Congress passed UMTRCA for the purpose of cleaning up “designated” uranium processing sites. Under UMTRCA, processing sites would be either acquired by the State or decontaminated at the govern- ment’s expense and returned to the property owner. All 61 acres of The Mill’s property were subsequently designated as a “processing site” under UMTRCA, and, in 1981, The Mill and the Department of Energy (DOE) entered into a limited agreement permitting DOE to test the 35-acre tailings pile. Nonetheless, testing was ulti- mately performed on all 61 acres and contamination of the ‘delicensed’ or unregulated mill yard was confirmed by the DOE in 1982. In 1983, The Mill leased its property to O.C. Coal Company, primarily for the storage of coal, at a rental of $7,000 per month. Subsequent to being notified of this lease, the State began issuing The Mill a series of letters and communications which restricted the property’s use for coal storage, and, in May of 1984, the coal company prematurely terminated its lease. Since then, The Mill has earned only approximately $500 to $700 a month from the mill yard based upon 20% building use. Alleging that, because of the State’s restrictions, the property could not be put to any reasonable economic use, The Mill filed a complaint in January 1986, alleging App. 57 three claims for relief: Inverse condemnation; a regula- tory taking; and that the State was estopped to deny it the use of its property. The trial court subsequently dismissed The Mill’s claim in inverse condemnation. Upon trial of the remaining claims, the court ruled that the State had so diminished The Mill’s right to use its property that it had effected a regulatory taking. Measur- ing damages in terns of “loss of use” over the period of time which the trial court anticipated decontamination of the property under UMTRCA would require, the court awarded The Mill $200,000. While these issues were on appeal, the State initiated an action to condemn The Mill property in fee simple under § 25-11-303(1)(d), C.R.S. (1989 Rep!.Vol. 11A). In response, The Mill moved for and was denied a dismissal or stay of the action pending the outcome of the consoli- dated appeal. Pursuant to a stipulation of the parties, the court determined that the fair market value of the prop- erty was zero, and it accordingly entered a “rule and order,” or judgment, vesting title to The Mill property in the State. I. 91CA0770 The eminent domain appeal In its appeal of the eminent domain proceedings, The Mill contends that the trial court’s judgment vesting the state with fee simple title to The Mill property must be vacated. We agree. The record reveals that the “zero” award in the con- demnation action here was the result of a stipulation App. 58 entered into by the parties in lieu of an evidentiary hear- ing under § 38-1-106, C.R.S. (1982 Repl.Vol. 16A). That stipulation entered into by The Mill and the State pro- vided in relevant part: Decontaminating The Mill’s property, which is presently contaminated with radioactive mate- rial, is a public purpose as set forth by statute in the Uranium Mill Tailings Radiation Control Act, 42 U.S.C. § 7901 et seq. and the Colorado Radiation Control Act, § 25-11-301 et seq. C.R.S. In its present condition, the cost of remedial action and cleanup of The Mill’s property to properly decontaminate it exceeds tne fair mar- ket value which the property would otherwise have if completely uncontaminated. Therefore, in its present condition, the value of The Mill’s property is zero. The Colorado Department of Health has the necessity for immediate possession of The Mill’s property in order to commence the remedial action and decontamination operations which are the purpose of the present condemnation proceeding. (emphasis added) A stipulation, like any other agreement between pri- vate parties, may be set aside if “there is a sound reason in law or equity” to do so. See generally Lake Meredith Reservoir Co. v. Amity Mutual Irrigation Co., 698 P.2d 1340 (Colo.1985). The stipulation is, by implication, a direct result of our decision in Department of Health v. Hecla Mining Co., 781 P.2d 122 (Colo.App.1989), in which, as here, the State sought to condemn property, like that at issue in this App. 59 appeal, heavily contaminated with radioactive uranium tailings and designated under UMTRCA as one of the specific sites eligible for remedial action. We held that the Hecla condemnation, likewise triggered by UMTRCA, was indisputably for a “public purpose.” Of critical importance, in Hecla, we also held that, as in other eminent domain proceedings, valuation of the condemned property was governed by the principle that an owner of land which is condemned is not entitled to recover the increase or enhancement in the value of his land which is caused by the very improvement for which the land is being acquired. Williams v. City & County of Denver, 147 Colo. 195, 363 P.2d 171 (1961). Determining that evidence of the value of Hecla’s property in its uncontaminated condition would represent such an increase or enhancement in value, we ruled that, in ascer- taining the fair market value of Hecla’s property for the purpose of awarding just compensation, no evidence of the uncontaminated value of the condemned land was admissible even though, as here, in its contaminated con- dition, the value of the property was zero. In short, Hecla was entirely dispositive of all the issues to be resolved by the court in The Mill’s immediate possession hearing under § 38-1-106, C.R.S. (1982 Repl.Vol. 16A). Likewise, it was dispositive of the only other issue pending, that of determining the fair market value of the property being condemned. Evaluating the parties’ stipulation here, thus, neces- sarily compels us to re-evaluate our conclusion in Hecla that, in valuing UMTRCA properties for the purpose of App. 60 awarding just compensation, evidence of the uncontami- nated value of the property was improper. Our analysis begins with an examination of the origin of both federal and State action, UMTRCA, and with an assessment of whether our holding in Hecla is consistent with this statu- tory scheme. We conclude that it is not and that, accord- ingly, the stipulation must be set aside. The purpose of UMTRCA is clearly stated in the Act, that is, to stabilize and control residual uranium radioac- tive materials at certain specially identified, privately held, inactive mill sites that were previously producers of uranium for the federal government. 42 U.S.C. §§ 7901, 7911 (1988). Provisions of UMTRCA reflect, if not a federal responsibility for the contamination of these mill sites, a federal obligation to stabilize and control the undisputed hazards of radioactivity. 42 U.S.C. § 7901 (1988). Accord- ingly, the statutory scheme vests considerable authority in the Secretary of the Department of Energy (Secretary) to complete remedial action at the designated sites promptly. Implementation is to proceed under federal/state cooperative agreements which delegate to the states the “means” to access these privately held lands and to fund the remedial action required to achieve decontamination. 42 U.S.C. § 7913 (1988). Specifically, UMTRCA provides that access will be obtained either through written consent of the property owner or, at the Secretary’s determination, through “acquisition” of the site by the state. Funding will be 90% federal dollars and 10% state dollars. 42 U.S.C. § 7917 App. 61 (1988). Significantly, private owners of sites that are not acquired through purchase or condemnation, are required to pay nothing for the consensual remedial cleanup of their property. Hecla Mining Co. v. United States, 909 F.2d 1371 (10th Cir.1990). In short, the foregoing statutory scheme obligates the federal government, and to a lesser extent the state gov- ernment, to undertake and to pay the costs of the reme- dial action compelled by the presence of unstable and uncontrolled uranium mill tailings. However, application of the Hecia rule effectively predetermines the fair market value of any properties in which access for clean-up is obtained by a condemnation proceeding initiated under UMTRCA at zero or minimal value. This is true irrespective of the fact that the prop- erty owner may have a substantial investment in the property. Accordingly, the owner’s investment becomes a casualty of, and hence, part of the “cost” of, remedial action. Thus, we conclude that the Hecla rule, which pre- cludes the admission of evidence of the value of UMTRCA properties in their uncontaminated state for the purpose of determining just compensation, is incon- sistent with this statutory scheme because it results in imposing at least a portion of the cost of clean-up on the property owner rather than the federal and state govern- ments. In support of the result we reach here, it should be noted that UMTRCA provides that, before offering for public sale any processing sites which the state has acquired, the state shall offer to sell such lands at their App. 62 fair market value as decontaminated back to the person from whom they were acquired. 42 U.S.C. § 7914 (1988). Thus, if, as in the case of Hecla, supra, decontamination increases the value of the property from zero to $3.5 million, the original property owner, who received noth- ing or almost nothing for his property in the condemna- tion proceeding and who elects to reacquire the property under the statute, in effect, subsidizes the ‘cost’ of the remedial action. The unfair and disparate treatment of the owners of designated sites is the inevitable result of applying tradi- tional condemnation rules to UMTRCA condemnations. A similar result does not occur when access for remedial action is accomplished through UMTRCA’s alternative means, that is, by obtaining the property owner’s written consent. Indeed, the disparate treatment created between similarly situated property owners by application of the Hecla rule is further evidence that the traditional enhan- cement rule was not intended to apply under UMTRCA. Thus, UMTRCA - the basis and authority for all federal and state action for remedial clean-up action on designated inactive uranium contaminated mill sites - does not support the rule announced in Hecla, supra, for valuation of UMTRCA properties subject to acquisition through condemnation. Condemnation in such instances is but one “means” to the “end” — remedial action under- taken solely at the federal government's initiative and predominately at its expense. Hence, condemnation, for the purpose of clean-up pursuant to UMTRCA, albeit proceeding under state law, must be consistent with his “end.” Application of the Hecla rule would negate this consistency. App. 63 UMTRCA’s legislative history further bolsters our conclusion. Nowhere in the extensive Congressional Committee reports discussing the federal law is the con- cept expressed, or even implied, that the property owner should be burdened by the cost, or any portion thereof, of the remedial action contemplated by the Act. Quite to the contrary, the focus of the Act is on the potential and significant radiation health hazard to the public that the tailings present and the federal government’s lack of authority, absent this legislation, to stabilize and control this hazard. The Act provides for an appropriation of funds and their expenditure under a shared cost formula which neither precludes state participation nor excessively bur- dens the federal budget. Indeed, in at least one committee report, it is specifically acknowledged that benefits to the property owner will accrue from the government's volun- tary remedial action as provided by the Act. H.R.Rep. No. 95-1480, 95th Cong., 2d Session Pt. 2, at 7464 (1978) reprinted in U.S.Code Cong. & Admin.News 7450. Therefore. in summary, based on UMTRCA’s express statutory scheme for remedial action, interpreted in light of the Act’s legislative history, we conclude that in valu- ing properties designated under 42 U.S.C. § 7912, for the purpose of determining just compensation in a condem- nation proceeding for remedial decontamination opera- tions under UMTRCA, the Congress intended that the rule against enhanced valuation set forth in Williams, supra, should not apply. To the extent that Hecla, supra, holds to the contrary, we feel compelled not to follow it. App. 64 The State advances several objections to our holding above. We conclude that none are persuasive. First, the State argues that our analysis ignores speci- fic reference to the applicability of the rule against enhanced value (§ 24-56-117(1)(c), C.R.S. (1988 Repl. Vol. 10B)) in the Radiation Control Act, § 25-11-301, et seq., C.R.S. (1989 Repl.Vol. 11A). Inasmuch as 24-56-117(1)(c) is a codification of the rule against enhanced value, our preceding discussion mandates our conclusion that it is inapplicable here because it directly conflicts with, and defeats the purpose of, UMTRCA. To apply it in order to exclude evidence of the value these properties would have if the decon- tamination had been accomplished would reject the basic scheme of both UMTRCA and the State Radiation Control Act. We view this as the only conclusion consistent with § 25-11-303, C.R.S. (1988 Repl.Vol. 10B) which, in addition to authorizing state participation in UMTRCA, speci- fically provides that: [D]ecision[s] made pursuant to the provisions of article 1 of title 38, C.R.S., shall be made in accordance with the criteria established in § 24-56-117(1)(c), C.R.S. and the provisions of the federal Uranium Mill Tailings Radiation Control Act of 1978. (emphasis added) Moreover, this conclusion is consistent with the dis- tinction between acquisition for a public improvement and acquisition, as here, for a public purpose in the interest of the public health safety and welfare. The former involves an anticipation that the property acquired will be put to a continuing public use, one App. 65 which is reasonably likely to enhance the value of the acquired or adjacent property. This related benefit result- ing from public acquisition and use is absent when the acquisition of property is to eliminate a public health or safety hazai ., like that underlying UMTRCA, because the property, at least at the time of condemnation, has no anticipated continuing public use. Indeed, UMTRCA specifically seeks in several ways to maintain private ownership of the properties designated for remedial action or to restore it to private use after decontamina- tion. See 42 U.S.C. §§ 7913, 7914 (1988). Accordingly, we conclude that § 24-56-117(1)(c), as it appears in the Radiation Control Act, must be interpreted as a general policy of state land acquisition which is modified, in this instance, by the specific policies for state land acquisition under UMTRCA. Next, the state argues that allowing evidence of UMTRCA properties’ uncontaminated value creates a special rule for one hazardous material but not for others. While this may be true, a review of the Act’s legislative history indicates that this was precisely the Congress’ intent. Particularly revealing in this regard is the report of the House Congressional Committee on Interstate and Foreign Commerce which states in pertinent part: [T]he committee . . . stresses that it does not consider [UMTRCA] a precedent to be followed in the case of other waste management prob- lems .. . [T]he situation at these inactive sites is quite unique in that there was once Federal licensing of the operations, but, due to a loop- hole in the law, the s [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1596%3A1. Public record. Not legal advice.