State of New Mexico v. United States Environmental Protection Agency

Filing 328

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson, denying 44 The Federal Defendant's Motion to Dismiss and Incorporated Memorandum in Support Thereof, granting in part and denying in part 114 The Federal Defendant's Motion to Dismiss and Incorporated Memorandum in Support. Associated Cases: 1:18-md-02824-WJ, 1:16-cv-00465-WJ-LF, 1:16-cv-00931-WJ-LF, 1:17-cv-00710-WJ-SCY, 1:18-cv-00319-WJ, 1:18-cv-00744-WJ-KK (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
IN RE: GOLD KING MINE RELEASE
IN SAN JUAN COUNTY, COLORADO,
ON AUGUST 5, 2015

No. 1:18-md-02824-WJ

This Document Relates to All Cases
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Federal Defendants’ Motion to Dismiss
and Incorporated Memorandum in Support Thereof, Doc. 44, filed July 25, 2018 (“First
Motion”),1 and on the Federal Defendants’ Motion to Dismiss and Incorporated Memorandum in
Support, Doc. 114, filed November 1, 2018 (“Second Motion”).2 For the reasons stated below,
the Court DENIES the First Motion and DENIES the Second Motion in large part.
Cost Recovery and Declaratory Judgment Under CERCLA
The State of New Mexico (“New Mexico”), the State of Utah (“Utah”), and the Navajo
Nation seek to recover the costs of their responses to the Gold King Mine Release pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42
U.S.C. § 9607 (listing persons liable for recoverable costs). See State of New Mexico’s First
Amended Complaint at 48, Doc. 8, filed May 11, 2018 (“NM FAC”); Utah’s First Amended
Complaint at 22, Doc. 93, filed January 4, 2018, in Utah v. Environmental Restoration, LLC.,
No. 18cv319 WJ (D.N.M.) (“UT FAC”); Navajo Nation’s First Amended Complaint at 46, Doc.
7, filed May 11, 2018 (“NN FAC”). They also seek a declaratory judgment on liability for
response costs that will be binding on any subsequent actions to recover further response costs.
See 42 U.S.C. § 9613(g)(2) (in an action to recover costs under 42 U.S.C. § 9607 “the court shall
Motion to dismiss the claims asserted by the State of New Mexico, No. 16cv465, the State of
Utah, No. 18cv319, the Navajo Nation, No. 16cv931, and the McDaniel Plaintiffs, 17cv710.
2
Motion to dismiss the claims asserted by the Allen Plaintiffs, 18cv744.
1

enter a declaratory judgment on liability for response costs or damages that will be binding on
any subsequent action or actions to recover further response costs or damages”).
The Federal Defendants seek dismissal of those claims on the grounds that Defendant
Environmental Protection Agency (“EPA”) retains sovereign immunity when responding to a
release or threat of release of a hazardous substance caused by others, and that Plaintiffs’
allegations fail to state a claim for relief against EPA under CERCLA because they have not
adequately alleged that EPA is liable as an “operator,” “arranger,” or “transporter.”
CERCLA’s Waiver of Sovereign Immunity
The plain language of CERCLA waives the federal government’s sovereign immunity.
CERCLA’s waiver of sovereign immunity states:
Each department, agency, and instrumentality of the United States (including the
executive, legislative, and judicial branches of government) shall be subject to,
and comply with, this chapter in the same manner and to the same extent, both
procedurally and substantively, as any nongovernmental entity, including liability
under section 9607 of this title.
42 U.S.C. § 9620(a)(1).
Three circuit courts have rejected the proposition that Section 9620 does not waive of
sovereign immunity “for response actions when such actions are EPA’s sole connection to the
site.” See U.S. v. Shell Oil Co., 294 F.3d 1045, 1053 (9th Cir. 2002) (“the United States has
repeatedly been held liable under CERCLA for acts that cannot possibly be characterized as
‘nongovernmental’;” “the United States is liable under [42 U.S.C. § 9607] only when it qualifies
as an owner or operator of a facility, an arranger of waste disposal, or an entity that accepts waste
for treatment or disposal”); East Bay Mun. Utility Dist. V. U.S. Dept. of Commerce, 142 F.3d
479, 482 (D.C. Cir. 1998) (Section 9620(a)(1) “does not on its face suggest a distinction between
the exercise of private (what we are calling ‘proprietary’) and regulatory powers”); FMC Corp.

2

v. U.S. Dept. of Commerce, 29 F.3d 833, 840 (3d Cir. 1994) (“the government can be liable when
it engages in regulatory activities extensive enough to make it an operator of a facility or an
arranger of the disposal of hazardous wastes even though no private party could engage in the
regulatory activities at issue”).
CERCLA addresses the liability of persons conducting response actions that result in
costs or damages:
Except as provided in paragraph (2), no person shall be liable under this
subchapter for costs or damages as a result of actions taken or omitted in the
course of rendering care, assistance, or advice in accordance with the National
Contingency Plan (“NCP”) or at the direction of an onscene coordinator
appointed under such plan, with respect to an incident creating a danger to public
health or welfare or the environment as a result of any releases of a hazardous
substance or the threat thereof. This paragraph shall not preclude liability for
costs or damages as the result of negligence on the part of such person.
42 U.S.C. § 9607(d)(1) (emphasis added). Section “9607 confers a defense upon parties ‘for
costs or damages as a result of actions taken or omitted in the course of rendering care,
assistance, or advice in accordance with the National Contingency Plan,’ unless such actions are
negligent.” U.S. v. Shell Oil Co., 294 F.3d 1045, 1053-54 (9th Cir. 2002); see also East Bay
Mun. Utility Dist. V. U.S. Dept. of Commerce, 142 F.3d 479, 483 (D.C. Cir. 1998) (Ҥ 9607(d)(1)
of the Act confers a defense on ‘all persons’ ‘for costs or damages as a result of actions taken or
omitted in the course of rendering care, assistance, or advice in accordance with the National
Contingency Plan,’ but does ‘not preclude liability for costs or damages as the result of
negligence’”).
CERCLA Liability
Section 9607 establishes that owners or operators of a facility, arrangers of waste disposal
or treatment, and persons who accept waste for transport to disposal or treatment facilities:
shall be liable for—
3

(A) all costs of removal or remedial action incurred by the United States
Government or a State or an Indian tribe not inconsistent with the national
contingency plan;
(B) any other necessary costs of response incurred by any other person consistent
with the national contingency plan;
(C) damages for injury to, destruction of, or loss of natural resources, including
the reasonable costs of assessing such injury, destruction, or loss resulting
from such a release; and
(D) the costs of any health assessment or health effects study carried out under
section 9604(i) of this title.
42 U.S.C. § 9607(a).
Operator Liability
The Supreme Court of the United States noted the “uselessness of CERCLA’s definition
of a facility’s ‘operator’ as ‘any person … operating’ the facility,” and gave the term “operator”
its “ordinary or natural meaning:”
[U]nder CERCLA, an operator is simply someone who directs the workings of,
manages, or conducts the affairs of a facility. To sharpen the definition for
purposes of CERCLA’s concern with environmental contamination, an operator
must manage, direct, or conduct operations specifically related to pollution, that
is, operations having to do with the leakage or disposal of hazardous waste, or
decisions about compliance with environmental regulations.
United States v. Bestfoods, 524 U.S. 51, 66-67 (1998); Raytheon Constructors, Inc. v. Asarco
Inc., 368 F.3d 1214, 1217 (10th Cir. 2003) (quoting the sharpened definition in Bestfoods).
“[T]he government can be liable when it engages in regulatory activities extensive enough to
make it an operator of a facility or an arranger of the disposal of hazardous wastes even though
no private party could engage in the regulatory activities at issue.” FMC Corp. v. U.S. Dept. of
Commerce, 29 F.3d 833, 840 (3d Cir. 1994); see also Burlington Northern v. Santa Fe Ry. Co. v.
United States, 556 U.S. 599, 602 (2009) (stating that CERCLA “was designed to promote the

4

‘timely cleanup of hazardous waste sites’ and to ensure that the costs of such cleanup efforts
were borne by those responsible for the contamination”).
The Sovereign Plaintiffs’ Complaints state claims for operator liability because they
allege that EPA managed, directed, or conducted operations specifically related to pollution, that
is, operations having to do with the leakage or disposal of hazardous waste, or decisions about
compliance with environmental regulations:
(i)

EPA issued Task Order which “sought a work plan from Environmental
Restoration aimed at disposing of the acid mine drainage,” and setting forth how
the work was to be performed. See NM FAC ¶¶ 77-78; NN FAC ¶¶ 67-72; UT
FAC ¶¶ 35-38.

(ii)

EPA halted excavation activities in 2014 after determining that draining the mine
would require larger settling ponds and additional treatment. See NM FAC ¶ 82;
NN FAC ¶ 80; UT FAC ¶ 41.

(iii)

EPA visited the site several times with its contractors before excavation began to
assess site conditions and drainage flows, and to prepare for the future work. See
NM FAC ¶ 90; NN FAC ¶¶ 84, 92; UT FAC ¶¶ 41-42.

(iv)

Before going on vacation an EPA supervisor “emailed specific instructions about
the scope and timing of work at the Gold King Mine site” to its contractors and
was replaced by a temporary EPA supervisor. See NM FAC ¶¶ 93-94; NN FAC
¶¶ 96-97; UT FAC ¶ 43.

Arranger Liability
“Because CERCLA does not specifically define what it means to ‘arrang[e] for’ disposal
of a hazardous substance,” the Supreme Court of the United States “give[s] the phrase its

5

ordinary meaning:” “under the plain language of the statute, an entity may qualify as an arranger
under § 9607(a)(3) when it takes intentional steps to dispose of a hazardous substance.”
Burlington Northern v. Santa Fe Ry. Co. v. United States, 556 U.S. 599, 611 (2009).
The Sovereign Plaintiffs’ Complaints state claims for arranger liability because they
allege that EPA took intentional steps to dispose of a hazardous substance:
(i)

After halting work in 2014 EPA determined that draining the Gold King Mine
would require larger settling ponds and additional treatment. See NM FAC ¶ 82;
NN FAC ¶ 82; UT FAC ¶ 41.

(ii)

EPA installed two new drain pipes to drain water from the adit. See NM FAC ¶ ;
NN FAC ¶ 83.

(iii)

In 2015 EPA and its contractors collected water samples, measured the flow from
the adit, and discussed a plan to install a sump basin to treat water that would be
pumped out of the mine. See NM FAC ¶ 90; NN FAC ¶ 94.

(iv)

EPA prepared a report stating that drainage would need to be managed in a larger
settling pond requiring additional treatment. See NM FAC ¶ 82; NN FAC ¶ 85;
UT FAC ¶ 41.

(v)

EPA sent its contractor a list of anticipated tasks which included preparing water
treatment plans. See NM FAC ¶ 88; NN FAC ¶ 87.

(vi)

EPA and its contractors graded the surface of the waste dump, and started
constructing a water management and treatment system to handle discharges from
the mine. See NM FAC ¶ 91.

Transporter Liability

6

Transporter liability arises when “any person accepts … any hazardous substances for
transport to disposal or treatment facilities, incineration vessels or sites selected by such person,
from which there is a release, or a threatened release which causes the incurrence of response
costs, of a hazardous substance.” 42 U.S.C. § 9607(a)(4).
The Sovereign Plaintiffs’ Complaints state claims for transporter liability because they
allege that EPA took steps to drain the mine and treat the water at the site.
Conclusion
The Court concludes that CERCLA has waived sovereign immunity and finds that the
Sovereign Plaintiff’s Complaints state claims against EPA for operator, arranger and transporter
liability. The Court denies that portion of the Federal Defendants’ motions to dismiss the
Sovereign Plaintiff’s claims to recover their response costs and for a declaratory judgment
regarding liability for further response costs.
Tort Claims Against the United States
Plaintiffs have asserted causes of action against the United States for various torts
including negligence, nuisance, and trespass.
The Federal Tort Claims Act (“FTCA”) waives sovereign immunity for actions against
the United States resulting from injuries caused by the negligent acts of governmental employees
while acting in the scope of their employment:
the district courts . . . shall have exclusive jurisdiction of civil actions on claims
against the United States, for money damages . . . for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.
28 U.S.C. § 1346(b)(1). This waiver of immunity does not apply to:

7

Any claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not
such statute or regulation be valid, or based upon the exercise or performance or
the failure to exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether or not the discretion
involved be abused.
28 U.S.C. § 2680(a) (“discretionary function exception”).
To determine whether conduct falls within the discretionary function exception, the Court
applies the two-part test set forth by the Supreme Court in Berkovitz v. United States, 486 U.S.
531, 536 (1988).
First, we ascertain the precise governmental conduct at issue and consider
whether that conduct was “discretionary,” meaning whether it was “a matter of
judgment or choice for the acting employee.” Berkovitz, 486 U.S. at 536, 108
S.Ct. 1954. Conduct is not discretionary if “a federal statute, regulation, or policy
specifically prescribes a course of action for an employee to follow. In this event,
the employee has no rightful option but to adhere to the directive.” Id.
If the first element of the Berkovitz test is satisfied, we then consider the second
element—whether the decision in question is one requiring the exercise of
judgment based on considerations of public policy. Id. at 536–37, 108 S.Ct. 1954.
In so doing, we do not consider the employee's “subjective intent in exercising the
discretion conferred by statute or regulation, but on the nature of the actions taken
and on whether they are susceptible to policy analysis.” United States v. Gaubert,
499 U.S. 315, 325, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991).
If both the first and second elements of the Berkovitz test are met, the
discretionary function exception to the waiver of sovereign immunity applies.
Stated another way, if a plaintiff can establish that either element is not met, the
plaintiff may proceed because the exception does not apply. Sydnes v. United
States, 523 F.3d 1179, 1183 (10th Cir.2008).
Garcia v. U.S. Air Force, 533 F.3d 1170, 1176 (10th Cir. 2008). “[A] government agent’s
discretionary actions are [presumed to be] grounded in policy, and it is up to the challenger to
allege facts showing that the actions were actually not policy-oriented.” Hardscrabble Ranch,
L.L.C. v. United States, 840 F.3d 1216, 1222 (10th Cir. 2016) (citing United States v. Gaubert,
499 U.S. 315 (1991).

8

The Sovereign Plaintiffs argue that the discretionary function exception does not apply
here because EPA violated applicable mandatory EPA and OSHA regulations regarding
excavation stability, working in excavations in which there is accumulated water, prevention of
accidental collapse of excavations, inspections of excavations, training workers to deal with
expected emergencies, health and safety plans, and the protection of workers from uncontrolled
releases of impounded water in abandoned mine workings. Doc. 61 at 61-69.
The Federal Defendants contend that the Sovereign Plaintiffs have not identified any
specific and mandatory obligations that removed EPA’s discretion. Doc. 76 at 28-35. The
Federal Defendants state that the regulations “do not prescribe a specific course of conduct,
through a fixed or readily ascertainable standard, for any EPA employee at the site.” Doc. 76 at
31.
The Sovereign Plaintiffs do, however, state that “EPA failed to adequately train workers
on site to deal with ‘expected emergencies’ like the blowout of hazardous acid mine drainage
that occurred on August 5, 2015, as required by 29 C.F.R. § 1910.120(e)(7).” That regulation
provides: “Employees who are engaged in responding to hazardous emergency situations at
hazardous waste clean-up sites that may expose them to hazardous substances shall be trained in
how to respond to such expected emergencies.” 29 C.F.R. § 1910.120(e)(7). The Sovereign
Plaintiffs also state “it is not clear that EPA performed any training at all,” that “[n]o one
disputes that § 1910.120(e)(7) specifically mandates at least some training, and Sovereign
Plaintiffs are entitled to discover whether EPA conducted any training whatsoever.” Doc. 61 at
66.
The Federal Defendants also state that the Sovereign Plaintiffs have claimed tort damages
that are not jurisdictionally cognizable under the FTCA where the Sovereign Plaintiffs seek

9

remote damages, damages for interference with contract rights and lost business, injunctive relief
and natural resource damages. Doc. 44 at 78-85. The Court denies the Federal Defendants’
motion to dismiss the Sovereign Plaintiffs’ claims based on the alleged requested relief because
“a district court cannot dismiss a claim solely because a plaintiff seeks excessive or otherwise
inappropriate relief.” EEOC v. CollegeAmerica Denver, Inc., 869 F.3d 1171, 1175 (10th Cir.
2017).
The Court denies the motion to dismiss the tort claims against the Federal Defendants at
this time to allow the Sovereign Plaintiffs an opportunity to discovery regarding the discretionary
function exception.
Jurisdiction over CWA and RCRA Claims
The State of Utah (“Utah”) and the State of New Mexico (“New Mexico”) seek
injunctive relief against the United States Environmental Protection Agency (“EPA”) and its
Administrator pursuant to the Clean Water Act (“CWA”), 33 U.S.C. § 1365(h). See UT FAC at
22; NM FAC at 48. Utah claims it “is authorized to compel the EPA Administrator to abate the
pollutants released in the Blowout that have contaminated soil, sediment, and water within the
State of Utah.”

UT FAC at 23.

New Mexico claims it is authorized “to compel the

Administrator of EPA to abate pollution from the hundreds of inactive and abandoned mines that
discharge pollutants into the Animas River in Colorado and adversely affect the public health
and environment in New Mexico.” NM FAC at 50.
Utah also seeks injunctive relief against the United States Environmental Protection
Agency (“EPA”) and its Administrator pursuant to the Resource Conservation and Recovery Act
(“RCRA”), 42 U.S.C. § 6972(a)(1)(B). See UT FAC at 20. Utah asserts that it:
is entitled to entry of an injunction that may require, among other things, a full
investigation and remediation of the contamination in the State of Utah caused by
10

the Blowout, including but not limited to the San Juan River and Lake Powell,
and the full recovery of its attorney fees and costs.
UT FAC at 22.
Both the CWA and RCRA have provisions regarding citizen suits. The CWA’s provision
states:
A Governor of a State may commence a civil action under subsection (a), without
regard to the limitations of subsection (b) of this section, against the
Administrator where there is alleged a failure of the Administrator to enforce an
effluent standard or limitation under this chapter the violation of which is
occurring in another State and is causing an adverse effect on the public health or
welfare in his State, or is causing a violation of any water quality requirement in
his State.
33 U.S.C. § 1365(h). RCRA’s provision authorizes citizen suits:
against any person, including the United States and any other governmental
instrumentality or agency . . . who has contributed or who is contributing to the
past or present handling, storage, treatment, transportation, or disposal of any
solid or hazardous waste which may present an imminent and substantial
endangerment to health or the environment.
42 U.S.C. § 6972(a)(1)(B).
CERCLA, however, limits when the Court has jurisdiction over claims made pursuant to
CWA or RCRA: “No Federal court shall have jurisdiction under Federal law . . . to review any
challenges to removal or remedial action selected under section 9604 of this title . . . except” in
certain actions. 42 U.S.C. § 9613(h). See Cannon v. Gates, 538 F.3d 1328, 1334-35 (10th Cir.
2008) (“The statutory definition of a removal action dictates that a removal action is ongoing and
thus, § 9613(h)’s jurisdiction strip applies, even if the Government has only begun to ‘monitor,
assess, and evaluate the release or threat of release of hazardous substances;” “a suit challenges a
removal action if it ‘interferes with the implementation of a CERCLA remedy’ because ‘the
relief requested will impact the [removal] action selected”).
RCRA also contains a provision limiting the Court’s jurisdiction over RCRA claims:
11

No action may be commenced . . . if the [EPA] Administrator, in order to restrain
or abate acts or conditions which may have contributed or are contributing to the
activities which may present the alleged endangerment-...
(ii) is actually engaging in a removal action under section 104 of the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 [42 U.S.C.A. § 9604];
(iii) has incurred costs to initiate a Remedial Investigation and Feasibility Study
under section 104 of the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 [42 U.S.C.A. § 9604] and is diligently proceeding with
a remedial action under that Act [42 U.S.C.A. § 9601 et seq.]
42 U.S.C. § 6972(b)(2)(B)(ii, iii).
The Federal Defendants’ motion to dismiss the CWA and RCRA claims for lack of
jurisdiction takes the form of a factual attack.3 See Federal Defendants’ Motion to Dismiss and
Incorporated Memorandum in Support Thereof at 28, Doc. 44, filed July 25, 2018 (“this motion
facially challenges Plaintiffs’ assertions of subject matter jurisdiction” “[e]xcept for the
arguments” regarding jurisdiction over the Sovereign Plaintiffs’ CWA and RCRA claims).
The Court notes that at the June 19, 2018, Initial Conference counsel for the United
States stated: “We don’t think the discovery is necessary. We will challenge the complaints
facially on the basis of the allegations in the complaint.” Transcript at 32:18-20, Doc. 35, filed
June 26, 2018. After counsel for the Navajo Nation and Utah suggested jurisdictional discovery
might be needed, counsel for the United States stated: “our motions will be accepting the
A Rule 12(b)(1) motion “to dismiss for lack of subject matter jurisdiction take[s] two forms:”
either a “facial” or a “factual” attack. Holt, 46 F.3d at 1002. A “facial attack on the complaint's
allegations as to subject matter jurisdiction questions the sufficiency of the complaint,” and in
reviewing a facial attack “a district court must accept the allegations in the complaint as true.” Id.
In reviewing a factual attack, “a party may go beyond allegations contained in the complaint and
challenge the facts upon which subject matter jurisdiction depends,” which does not allow a
reviewing court to “presume the truthfulness of the complaint's factual allegations.” Id. at 1003.
Instead, it gives the court “wide discretion to allow affidavits, other documents, and a limited
evidentiary hearing to resolve disputed jurisdictional facts.” Id.
3

Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015) (quoting Holt v.
United States, 46 F.3d 1000 (10th Cir. 1995)).
12

allegations of the plaintiffs’ complaint as true. So it will be a facial Rule 12(b)(1) motion.
We’re not going to be raising disputed issues of fact in the federal defendants’ motion.”
Transcript at 34:6-12, 35:4-13, 36:10-13.
The Federal Defendants’ Rule 12(b)(1) motion raises disputed issues of fact. The Federal
Defendants filed the Declaration of EPA’s lead Remedial Project Manager for EPA’s Region 8
Superfund Remedial Program at the Bonita Peak Mining District Superfund Site in southwestern
Colorado to show that EPA is performing remedial and removal actions and has incurred costs in
its Remedial Investigation and Feasibility Study of the Bonita Peak Mining District which
includes the Gold King Mine. The Declaration states: (i) The precise geographical boundaries
of the Bonita Peak Mining District Superfund Site have not been specified “because the Site
boundaries will be determined based on investigations regarding the extent of the release and the
risks posed by the release. The Site potentially extends to wherever contamination from that
commingled release comes to be located;” (ii) “Until the investigatory work is completed, the
scope of the Site, nature and extent of the contamination, and the response actions necessary to
address the risks posed by historical and ongoing releases cannot be fully defined;” (iii) The
“EPA Office of Research and Development has been studying the fate and transport of
contaminants from the August 5, 2015, release from the Gold King Mine . . . and issued a report
in January 2017 documenting that the data suggests that the contamination from the God King
Mine release has come to be located in Lake Powell. Whether remedial action is warranted at
each area where contamination has come to be located is a question that is addressed during the
Remedial Investigation;” and (iv) “On June 14, 2018, EPA published a proposed plan for interim
remedial actions at the [Bonita Peak Mining District] Site.” EPA solicited comments on the
proposed plan and, after considering the comments, “will determine whether to move ahead with

13

the preferred alternative as written, modify it, or develop other interim remedial actions.”
Declaration of Rebecca Thomas at 3-4, Doc. 44-5, filed July 25, 2018. 4
The Sovereign Plaintiffs assert that the Court has jurisdiction over New Mexico and
Utah’s CWA claims and Utah’s RCRA claim because they do not challenge EPA’s remedial
action at the Bonita Peak Mining District. See Sovereign Plaintiffs’ Response at 20-25, Doc. 61,
filed August 31, 2018.

Utah filed the Declaration of the Director of the Division of

Environmental Response and Remediation in the Utah Department of Environmental Quality,
which is the coordinating entity for federal actions under CERCLA. The Declaration states: (i)
“EPA has proposed a plan to initiate an interim remedial action at [the Bonita Peak Mining
District] site and the State of Utah has provided comments on the proposed plan. EPA’s plan
does not provide for any remedial action in the State of Utah. I am aware of no plan or timetable
for EPA to begin remedial action in the State of Utah;” and (ii) “I have received no notice from
EPA that it has commenced any removal or remedial action related to the Gold King Mine
blowout in the State of Utah.” Declaration of Brent H. Everett at 1-2, Doc. 60, filed August 31,
2018.
The Court denies the Federal Defendants’ Motion to dismiss the Sovereign Plaintiffs’
CWA and RCRA claims for lack of subject-matter jurisdiction because the Federal Defendants
have factually challenged Plaintiffs’ assertion of subject-matter jurisdiction, after indicating
during the Initial Conference that they would only make facial challenges, using facts that are
disputed by the Sovereign Plaintiffs. The Federal Defendants may file a motion for summary

The Sovereign Plaintiffs cite a Declaration of Rebecca Thomas that was signed on September
28, 2017. See Doc. 46-3, filed July 25, 2018. The Declaration of Rebecca Thomas filed with the
Federal Defendants’ Motion to dismiss was signed on July 24, 2018. See Doc. 44-5, filed July
25, 2018.
4

14

judgment regarding jurisdiction over the Sovereign Plaintiffs’ CWA and RCRA claims after
jurisdictional discovery.
Federal Defendants Second Motion to Dismiss the Allen Complaint
On August 3, 2018, after the Federal Defendants filed their First Motion to Dismiss,
members of the Navajo Nation and residents of New Mexico, Colorado, Arizona and Utah, who
farm land and/or raise livestock adjacent to the Animas River or the San Juan River, filed a
Complaint in Allen v. United States, 18cv744 WJ/KK, (“Allen Complaint”), asserting tort claims
arising from the August 5, 2015, release from the Gold King Mine.
The Federal Defendants then filed their Second Motion to Dismiss the Allen Complaint
on two grounds: (i) EPA is not an appropriate party under the Federal Tort Claims Act
(“FTCA”); and (ii) the FTCA’s discretionary function exception bars Plaintiffs’ claims against
the United States.
The Federal Defendants move to dismiss the Allen Plaintiffs’ tort claims against EPA
because the only proper party in an FTCA action is the United States, not the federal agency.
First Motion at 2, Doc. 114, filed November 1, 2018. In their Response, the Allen Plaintiffs
“concede the Federal Defendants’ argument that this Court lacks jurisdiction over the Allen
Plaintiffs’ tort claims against EPA because EPA is not an appropriate party under the FTCA,”
and “stipulate to a dismissal of their claims against the EPA.” Doc. 126 at 2, filed November 15,
2018. The Court grants the Federal Defendants’ motion to dismiss the Allen Plaintiffs’ tort
claims against EPA.
The Court denies that portion of the Federal Defendants motion to dismiss the Allen
Plaintiffs’ tort claims against the United States.

The Federal Defendants argue that the

discretionary function exception bars the Allen Plaintiffs’ tort claims. As discussed above, the

15

Court denied the Federal Defendants’ First Motion to dismiss the tort claims against the Federal
Defendants to allow the Sovereign Plaintiffs an opportunity to discovery regarding the
discretionary function exception.
THEREFORE, IT IS ORDERED that for the above stated reasons:
(i)

The Federal Defendants’ Motion to Dismiss and Incorporated Memorandum in
Support Thereof, Doc. 44, filed July 25, 2018, is DENIED.

(ii)

The Federal Defendants’ Motion to Dismiss and Incorporated Memorandum in
Support, Doc. 114, filed November 1, 2018, is GRANTED in part and DENIED
in part.

________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

16