New Mexico ex rel. N.M. Env’t Dep't v. U.S. Envtl. Prot. Agency

310 F.Supp.3d 1230

The State of NEW MEXICO ON BEHALF OF the NEW MEXICO ENVIRONMENT DEPARTMENT, Plaintiff,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Gina McCarthy in her official capacity as Administrator, United States Environmental Protection Agency; Environmental Restoration, LLC; Kinross Gold Corporation; Kinross Gold U.S.A., Inc. ; and Sunnyside Gold Corporation, Defendants.andNavajo Nation, a federally recognized Indian Tribe, on its own behalf, and as parens patriae on behalf of the Navajo people, Plaintiff,

v.U.S. Environmental Protection Agency; Environmental Restoration, LLC; Harrison Western Corporation; Gold King Mines Corporation; Sunnyside Gold Corporation ; Kinross Gold Corporation; Kinross Gold U.S.A., Inc. ; and Does 1–10, Defendants.

No. 16–CV–465 MCA/LF

No. 16–CV–931 MCA/LF

United States District Court, D. New Mexico.

Signed February 12, 2018

Cholla Khoury, New Mexico Attorney Genderal's Office, Santa Fe, NM, William James Jackson, Ann L. Al–Bahish, John D.S. Gilmour, Jordan A. Rodriguez, Lauren K. Valastro, Jackson Gilmour & Dobbs, PC, Houston, TX, Jordon P. George, Marcus J. Rael, Jr., Robles Rael & Anaya, PC, Albuquerque, NM, Andrew K. Walsh, Kasey L. Mitchell, Moez M. Kaba, Hueston Hennigan LLP, Los Angeles, CA, John C. Hueston, Hueston Hennigan LLP, Newport Beach, CA, Paul Spruhan, Navajo Nation Department of Justice, Window Rock, AZ, for Plaintiffs.

Brian H. Lynk, John A. Bain, Michael Williams, Sarah Williams, Simi Bhat, William G. Powers, Meghan Elizabeth Greenfield, U.S. Department of Justice, Washington, DC, Terry Farmer, Brittany M. Sayer, Moses, Dunn, Farmer & Tuthill, P.C., Albuquerque, NM, Andriy Pazuniak, Terry D. Avchen, Peter Sheridan, Christensen, Weil, Fink, Howard LLP, Los Angeles, CA, Bradford C. Berge, Holland & Hart LLP, Santa Fe, NM, Elizabeth H. Temkin, Davis Graham & Stubbs LLP, Scott W. Hardt, Temkin Hardt & Longenecker LLP, Darin J. Lang, Hall & Evans, LLC, Denver, CO, Neil G. Westesen, Crowley Fleck PLLP, Bozeman, MT, Paul C. Collins, Christopher C. Stoneback, Jeffery J. Oven, Crowley Fleck PLLP, Billings, MT, Mark L. Stermitz, Crowley Fleck PLLP, Missoula, MT, Anthony D. Edwards, Sholler Edwards, LLC, Durango, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

M. CHRISTINA ARMIJO, United States District Court JudgeTHIS MATTER is before the Court on Defendant Environmental Restoration, LLC's Motion to Dismiss the Complaint [Doc. 1] and Motion to Strike [Doc. 32], pertaining to the Complaint filed by the State of New Mexico; and Defendant Environmental Restoration, LLC's Motion to Dismiss the Complaint [Doc. 1] and Motion to Strike [Doc. 101], pertaining to the Complaint filed by the Navajo Nation. The Court has considered the submissions, the relevant law, and is otherwise fully advised in the premises. The Court grants-in-part, denies-in-part, and, in-part, holds in abeyance ER's Motions.

This opinion addresses all arguments raised by Defendant Environmental Restoration (hereafter, ER) with the exception of its arguments based on the jurisdictional bar set forth at 42 U.S.C. § 6972(b)(2)(B)(ii) and 42 U.S.C. § 9613(h). The Court has requested additional briefing and evidence with respect to whether certain of Plaintiffs' claims are barred by the above provisions, and the briefing, which remains in progress. Nonetheless, the Court herein addresses the remaining issues raised by ER.

I. BACKGROUND

A. Procedural Posture

On May 23, 2016, New Mexico filed its Complaint stemming from the Gold King mine spill which occurred on August 5, 2015. [16–CV–465, Doc. 1]¹ On August 16, 2016, the Navajo Nation filed its Complaint based on the Gold King mine spill. [16–CV–931, Doc. 1] On November 28, 2016, this Court consolidated the two cases. [Doc. 90] Both Plaintiffs filed motions for leave to amend their complaints. [Doc. 86; Doc. 141]

Generally, both Plaintiffs allege that, while conducting environmental remediation of the Gold King Mine in Colorado, the Environmental Protection Agency (hereafter, EPA), ER (a contractor for the EPA), and others "breached a collapsed portal" of the mine, "releasing over three million gallons of acid mine drainage and 880,000 pounds of heavy metals into the Animas River watershed." [Doc. 1, ¶ 1; accord. 16–CV–931, Doc. 1, ¶ 1] The acid mine drainage traveled down-river, into the San Juan River, into New Mexico, and into the Navajo Nation, causing extensive environmental and economic damage. [Doc. 1, ¶¶ 1–3; 16–CV–931, Doc. 1, ¶¶ 4, 24]

New Mexico brings six causes of action against ER: cost recovery and declaratory judgment under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); injunctive relief under the Resource Conservation and Recovery Act (RCRA); public nuisance; trespass; and "negligence and gross negligence." [Doc. 1, pp. 32–48; Doc. 86–1, pp. 41–61] Navajo Nation brings seven causes of action against ER: cost recovery and declaratory judgment under CERCLA; negligence; gross negligence; trespass; public nuisance; and private nuisance. [16–CV–931, Doc. 1, pp. 34–46; Doc. 141–1 pp. 46–58] ER challenges each cause of action by both Plaintiffs. [Doc. 32; Doc. 101]

While both Plaintiffs have moved for leave to amend their complaints [Doc. 86; Doc. 141], those motions are opposed and remain pending.² On January 23, 2017, this Court entered a Memorandum Opinion and Order³ stating that this Court will consider whether dismissal of the proposed amended complaints would be appropriate in light of the various Defendants' Motions to Dismiss , thus analyzing whether the proposed amended complaints would be futile. [Doc. 118, p. 6] The Court further rejected ER's arguments that New Mexico's Motion for Leave to File Amended Complaint was untimely and that it prejudiced ER. [Doc. 118, pp. 6–7] Having addressed these issues, the only issue remaining to be considered in determining whether to grant New Mexico's (as well as Navajo Nation's) Motion for Leave to File Amended Complaint is whether amendment would be futile. Accordingly, for purposes of the ER's Motions to Dismiss Plaintiffs' claims, the Court considers the facts as alleged in the Proposed Amended Complaints , thereby conducting the futility analysis. [Doc. 86–1; Doc. 141–1] If dismissal is proper as against ER based on the facts alleged therein, then amendment of the claims as against ER would be futile and the claims against ER must be dismissed.

Finally, on December 11, 2017, ER filed a Motion to Transfer for Coordinated or Consolidated Pretrial Proceedings Under 28 U.S.C. § 1407 with the United States Judicial Panel on Multidistrict Litigation. [Doc. 191–1] Thereafter, the United States filed a Motion to Temporarily Stay Proceedings Pending Decision by the Judicial Panel on Multidistrict Litigation. [Doc. 191] Some parties oppose the Motion to Stay , or oppose only a delay of the decision on their pending motions to dismiss. [Doc. 191, p. 2; Docs. 192, 195, 199] The Court does not address the Motion to Stay [Doc. 191] in this Memorandum Opinion and Order. The Court exercises its discretion to rule on the present motion only, concluding that no cause has been shown to stay the issuance of this decision, including the factors of judicial economy and avoiding hardships and inequities to the moving party. See Pace v. Merck & Co., Inc. , CIV 04–1356 MCA/ACT, 2005 WL 6125457, *1 (D.N.M. 2005) (recognizing the district court has the discretion to stay a case when a motion to transfer proceedings is pending and listing the factors the district court should consider).

B. Allegations

New Mexico alleges:

On August 5, 2015, EPA, EPA's contractors, and the Colorado Division of Reclamation, Mining and Safety ("DRMS"), used an excavator to dig away tons of rock and debris that blocked the portal of the Gold King Mine. Water had been building in the mine and seeping out of the portal for years, and EPA, the contractors, and Colorado officials knew the water was highly acidic and laced with heavy metals. Colorado's records and EPA's work plan not only recognized that the mine was filled with water, but also highlighted the risk of a significant blowout—especially if workers attempted to dig away the blockage. Yet, the work plan ignored this well-understood risk. In fact, EPA's lead official at the Gold King Mine—who was on vacation when the crew triggered the release—had ordered EPA and DRMS employees and EPA's contractor not to excavate the earthen debris blocking the portal and not to drain the mine without setting up equipment to handle the discharge. Further, the lead EPA official—recognizing the hazards at the site—told the crew to wait to excavate until after he returned from vacation and consulted with an engineer from the Department of Interior's Bureau of Reclamation about the risks of EPA's actions at the site. Despite the clear dangers and explicit directions of EPA's project leader, the on-site crew dug into the portal without verifying the hydraulic pressure or taking necessary precautions—with catastrophic consequences.

[Doc. 86–1, ¶ 4]

New Mexico alleges that mining operations at the Gold King Mine ceased in 1992 [Doc. 86–1, ¶ 30] and, in 2004, the Level 7 adit⁴ collapsed. [Doc. 86–1, ¶ 63] The Colorado Division of Minerals and Geology inspected the Gold King mine in 1996 and found that it drained one to two gallons of acid mine drainage per minute. [Doc. 86–1, ¶ 53] In 1996 a neighboring mine, the Sunnyside Mine, was sealed using a bulkhead (and a second bulkhead was installed in 2001), causing acid mine drainage to travel through a connecting tunnel, the American Tunnel, to the Gold King Mine. [Doc. 86–1, ¶¶ 39–41] As a result of the collapsed adit and the acid mine drainage from the American Tunnel, Gold King Mine's discharge grew to between 150 and 200 gallons per minute, depending on the season, by 2007. [Doc. 86–1, ¶¶ 53, 63]

In 2008 and 2009, in an attempt to address the acid mine drainage, the Colorado Division of Reclamation, Mining and Safety (DRMS) "secured...