On August 3, 2018, almost 300 Navajo farmers and ranchers filed a complaint for Personal Injuries and Damages against the United States, U.S. Environmental Protection Agency (EPA) and the Gold King mining companies in the U.S. District Court of New Mexico. This latest lawsuit marks the fifth against the EPA for the Gold King Mine waste spill in August 2015. The complaint seeks, inter alia, declaratory and injunctive relief, and costs and attorneys’ fees.

The Gold King Mine, located near the Animas River at Silverton, Colorado, suffered a massive spill three years ago. The Animas River is a tributary of the San Juan River running from the San Juan Mountains of Colorado through Silverton and Durango, Colorado and then stretching into the San Juan River in Farmington, New Mexico. A federal report issued in April 2016 concluded the spill was EPA’s fault. [Allen, et al. v. United States of America, Case No. 18-cv-00744-WJ-KK (D. N.M. Aug. 3, 2018).]

Background

The spill was caused when Environmental Restoration, an EPA contractor, accidently breached a containment wall in a plugged mine tunnel. Colorado environmental officials had in years past approved a plan to plug the tunnels of a closed companion mine resulting in a huge, toxic wastewater storage facility. Discharge from the spill, reflected in a bright yellow plume, carried an estimated 880,000 pounds of heavy metals into New Mexico including arsenic, lead, copper, zinc and mercury. Municipal and community water systems in New Mexico’s San Juan County were forced to stop drawing water from the River for drinking, irrigation or livestock watering. The spill immediately had a negative impact on tourism with people choosing not to book fishing trips on the San Juan River.

Sometime after the Gold King Mine closed, toxic wastewater began leaking from the mine. The EPA hired a contractor to use an excavator to cover the portal entrance of the mine, while being supervised by EPA and Colorado employees. According to Colorado Division of Reclamation Mining and Safety records and EPA’s work plan, the risk of “blowout” was known by the crew. The excavator destroyed the plug blocking the toxic water and over several days, 3 million gallons of wastewater flowed out of the mine and into the Animas River.

The effects of the spill were devastating and immediate. Over 880,000 pounds of metal was released into the Cement Creek tributary of the Animas River. A mustard-colored plume flowed down the Animas River into the San Juan River and through Navajo Nation lands. The plume traveled down the San Juan River into Utah, reaching Lake Powell within a week of the “blowout.” The metal concentrations in the water exceeded both federal and state drinking water standards affecting New Mexico residents, tourism, livestock, agriculture, and the local environment. The effects were felt by those in Colorado, New Mexico, and Utah including the Navajo Nation and Southern Ute Indian Reservations.

The EPA’s response to the Animas spill was highly criticized by the media and local residents, in part, because the EPA did not alert the public to the spill for 24 hours. The EPA has since taken responsibility for the cleanup, creating drainage impoundments and expending millions of dollars in reimbursements to state, federal, and local entities.

The Claims

The Navajo Nation’s claims for money damages as compensation for personal injury and property damage are brought against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. Section 2761 et seq. The complaint details each plaintiff’s factual circumstances as it relates to the spill. The common thread among the plaintiffs is that they all depend on the San Juan River for various water uses. In addition, the complaint states:

• . . .[a]s members of the Navajo Nation, plaintiffs have an enormous cultural and spiritual connection to the land and waters of the Animas River and San Juan Rivers. As a result of the spill, plaintiffs have experienced great spiritual and emotional distress. Complaint at § 8.

The complaint alleges, inter alia, that the Gold King Mine spill forced plaintiffs:

• . . .to locate alternative water sources at great expense of money, time and labor. Even where plaintiffs were able to locate alternative water sources, these water sources were inadequate to irrigate crops and plaintiffs lost all or most of their harvests. Id. at § 6.

The complaint further alleges defendants:

• . . .blatantly disregarded known pressurized conditions at the Gold King Mine site and conducted activities on-site in a reckless manner indifferent to the likely impact on downstream communities. Id. at § 376.

Plaintiffs also cite the “Rule in Rylands v. Fletcher,” an 1868 decision by the House of Lords of the United Kingdom that established a new area of English tort law. Under the Rule:

• . . .the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” https://en.wikipedia.org/wiki/RylandsvFletcher. In that case, defendant Rylands hired independent contractors to construct a reservoir on his property. Because they were independent contractors, Rylands had no involvement in the construction. As construction of the reservoir commenced, the independent contractors discovered old mine shafts. Rather than plug or block them, they continued construction. The reservoir subsequently burst resulting in flooding to Rylands’ neighbor’s mine. Fletcher, Ryland’s neighbor, pursued negligence claims against Ryland. The lower sitting judges found in favor of Rylands, however, the higher court found for Fletcher establishing the Rule.

Conclusion and Implications

The EPA has previously acknowledged responsibility for clean-up at the Gold King Mine. This latest lawsuit by hundreds of Navajo farmers and ranchers represents the largest group to file suit in response to the massive toxic spill. There are thousands of inactive mines in the western United States that are leaking or have the potential to leak toxic wastewater. This latest lawsuit again underscores the need to address how abandoned mining sites are maintained and cleaned up.

(Christina J. Bruff)