State of New Mexico v. United States Environmental Protection Agency

Filing 710

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson, Granting in Part 867 Kinross Gold Corporations's Motion for Summary Judgment on the United States' Crossclaims: Personal Jurisdiction Associated Cases: 1:18-md-02824-WJ, 1:16-cv-00465-WJ-LF, 1:16-cv-00931-WJ-LF, 1:18-cv-00319-WJ (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
This Document Relates to:

No. 1:18-md-02824-WJ

No. 1:16-cv-00465-WJ-LF
No. 1:16-cv-00931-WJ-LF
No. 1:16-cv-00319-WJ

MEMORANDUM OPINION AND ORDER
GRANTING IN PART KINROSS GOLD CORPORATION’S MOTION FOR
SUMMARY JUDGMENT ON THE UNITED STATES’ CROSSCLAIMS:
PERSONAL JURISDICTION
THIS MATTER comes before the Court on Kinross Gold Corporation’s Motion for
Summary Judgment on the United States’ Crossclaims: Personal Jurisdiction, Doc. 867, filed
October 13, 2020 (“Motion”).
The United States brought crossclaims against Kinross Gold Corporation (“KGC”)
pursuant to CERCLA, 42 U.S.C. §§ 9601, et seq. See Doc. 192 at 49, filed July 1, 2019 (New
Mexico v. United States EPA); Doc. 195 at 46, filed July 1, 2019 (Navajo Nation v. United States);
Doc. 247-1 at 28, filed July 1, 2019 (Utah v. Environmental Restoration). The United States
alleged in its crossclaims that the Court has specific jurisdiction over KGC. See Doc. 192 at 49
(stating "There is personal jurisdiction over Sunnyside Gold and Kinross [because they]
purposefully directed their Site activities at the Animas River Watershed and downstream into the
Animas and San Juan Rivers, and response costs arose out of those activities"); Old Republic
Insurance Co. v. Continental Motors, Inc., 877 F.3d 895, 904 (10th Cir. 2017) (Specific
jurisdiction has two distinct requirements: (i) the "defendant must have purposefully directed its
activities at residents of the forum state,” and (ii) “the plaintiff's injuries must arise out of [the]
defendant's forum-related activities”).

KGC asserts that “the courts of New Mexico and Utah lack personal jurisdiction over”
KGC because “KGC does not do business in the United States, and KGC has not itself purposefully
directed any activities toward either Utah or New Mexico.” Motion at 2. KGC sets forth facts
showing that Sunnyside Gold Corporation ("Sunnyside") is an indirect subsidiary of KGC, KGC
did not own any interest in Sunnyside until January 31, 2003, Sunnyside closed the Sunnyside
Mine in 1991 and installed three bulkheads in the American Tunnel by the end of 2002, and KGC
has never owned or operated the Sunnyside Mine. See Motion at 3-4.
The United States disputes KGC's assertion that Sunnyside "operated the Sunnyside Mine
until it closed in 1991" stating Sunnyside "continued 'operations' at the Sunnyside Mine after the
mine closed in 1991." Response at 20, Doc. 909, filed November 16, 2020. However, the portion
of the record that the United States refers to indicates only that Sunnyside Gold Corporation had
employees from 1985 to 1996; it does not indicate that Sunnyside continued operations at the
Sunnyside Mine. See Doc. 909-6 at 25. The United States also disputes KGC's assertion that
"[n]either KGC nor KGUSA has ever owned or operated the Sunnyside Mine." Response at 20.
The United States says "[f]or purposes of CERCLA, Echo Bay Mines [a subsidiary of KGC]
'operated' the Sunnyside Mine, as it was directly involved in decisions having to do with the
leakage or disposal of hazardous waste, and/or decisions about compliance with environmental
regulations relating to the mine. By virtue of its [merger] with Echo Bay Mines, KGC assumed
any liability associated with Echo Bay Mines' operation of the Sunnyside Mine and therefore KGC
is considered to have 'operated' the Sunnyside Mine." Response at 20-21 (emphasis added). The
United States does not contend that the Court has specific jurisdiction over KGC.
Instead, the United States contends that the Court has personal jurisdiction over KGC
pursuant to Fed. R. Civ. P. 4(k)(2) which states:

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Federal Claim Outside State-Court Jurisdiction. For a claim that arises under
federal law, serving a summons or filing a waiver of service establishes personal
jurisdiction over a defendant if:
(A) the defendant is not subject to jurisdiction in any state's courts of general
jurisdiction; and
(B) exercising jurisdiction is consistent with the United States Constitution
and laws.
Fed. R. Civ. P. 4(k)(2). The United States appears to concede that the Court does not have specific
jurisdiction over KGC because Rule 4(k)(2) provides for personal jurisdiction where "the
defendant is not subject to jurisdiction in any state's courts of general jurisdiction."
The United States raises its Rule 4(k)(2) argument, apparently for the first time, in its
Response and refers to portions of the record to support its argument but did not set forth lettered
additional material facts as required by D.N.M.LR-Civ. 56.1(b) which makes it difficult for KGC
to dispute those additional material facts. In its Reply, KGC raises some issues, such as whether
the United States waived its claim that jurisdiction arises under Rule 4(k)(2), that the United States
did not have an opportunity address. See Doc. 949, filed December 4, 2020.
The Court grants KGC's Motion for summary judgment based on lack of specific
jurisdiction because the United States does not dispute KGC's assertion that the Court does not
have specific jurisdiction. The Court will allow the United States to file a motion regarding
jurisdiction pursuant to Rule 4(k)(2) to allow the United States and KGC to fully brief the issue
and because the deadline for filing such motions only recently passed. See Alejandre-Gallegos v.
Holder, 598 Fed.Appx. 604, 605 (10th Cir. 2015) ("In our adversarial system, neutral and busy
courts rely on lawyers to develop and present in an intelligible format the facts and law to support
their arguments”); Doc. 303 at 2, filed September 11, 2019 (setting April 15, 2021, deadline for
filing motions for summary judgment on any remaining issues).

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IT IS ORDERED that:
(i)

Kinross Gold Corporation’s Motion for Summary Judgment on the United States’
Crossclaims: Personal Jurisdiction, Doc. 867, filed October 13, 2020, is
GRANTED as to specific jurisdiction.

(ii)

The United States may, within 21 days of entry of this Order, file a motion
regarding whether the Court has personal jurisdiction over Kinross Gold
Corporation pursuant to Fed. R. Civ. P. 4(k)(2).

________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

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