State of New Mexico v. United States Environmental Protection Agency

Filing 717

MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson, granting in part ( 1113 in 1:18-md-02824-WJ) MOTION to Dismiss for Lack of Jurisdiction Under Fed. R. Civ. P. 12(b)(1) 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
GRANTING IN PART FEDERAL DEFENDANTS' MOTION TO DISMISS CLAIMS
FOR LACK OF SUBJECT-MATTER JURISDICTION UNDER FED. R. CIV. P. 12(b)(1)
THIS MATTER comes before the Court on the Federal Defendants' Motion to Dismiss
Claims for Lack of Subject-Matter Jurisdiction under Fed. R. Civ. P. 12(b)(1), Doc. 1113, filed
February 19, 2021 ("Motion").
Discretionary Function Exception of the FTCA
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, however, apply to:
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”).
The Federal Defendants previously filed two motions to dismiss the tort claims against the
United States based on the discretionary function exception to the FTCA. See Doc. 44, filed July
25, 2018 (regarding New Mexico and the Navajo Nation's tort claims); Doc. 114, filed November
1, 2018 (regarding the Allen Plaintiffs' tort claims). The Court denied those motions to allow "for
discovery regarding the discretionary function exception."

Doc. 164, filed February 28, 2019.

The United States subsequently filed a motion for partial summary judgment based on the
discretionary function exception eight days after discovery opened. See Doc. 268, August 13,
2019. The Court denied the United States motion for partial summary judgment as "premature
because Plaintiffs have not had an opportunity for discovery." Doc. 338 at 3, filed October 17,
2019.
The Federal Defendants filed their Motion to Dismiss, which is now before the Court and
is based in part on the discretionary function exception, on February 19, 2021, shortly after the
January 29, 2021, close of fact discovery. See Doc. 889, filed October 30, 2020 (extending
deadline for fact discovery from December 31, 2020, to January 29, 2021).
New Mexico and the Navajo Nation have since filed a Motion for Sanctions Due to the
Federal Parties' Spoliation of Evidence. Doc. 1179, filed May 4, 2021. New Mexico and the
Navajo Nation contend they are prejudiced because some of the lost evidence "would also be
relevant to the Federal Parties' primary defense to [New Mexico and the Navajo Nation's] tort
claims—the discretionary function exception to the Federal Tort Claims Act" stating:
Making the prejudice to the Sovereign Plaintiffs even more plain, the Federal
Parties seek to exploit the spoliation in their reply brief in support of their pending
motion to dismiss [based on the discretionary function exception], arguing that the
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Sovereign Plaintiffs "fail to cite any evidence that the crew was removing any
blockage material in order to release impounded water from the mine on August 4
or 5, 2015."
Doc. 1179 at 22. The alleged spoliated evidence includes text messages, photographs and
documents on the laptops and iPhones of "the two most important EPA witnesses in this case—
On-Scene Coordinators Hays Griswold and Steve Way." Doc. 1179 at 5. New Mexico and the
Navajo Nation state that "the Federal Parties' belated disclosure [of spoliated evidence] came with
just two months left of fact discovery, which was set to close on December 31, 2020." Doc. 1179
at 13-14. The Allen Plaintiffs have joined in and adopted by reference New Mexico and the Navajo
Nation's Motion for Sanctions Due to the Federal Parties' Spoliation of Evidence. See Doc. 1181,
filed May 5, 2021. Plaintiffs seek sanctions including an order precluding the Federal Parties from
putting on evidence EPA's On-Scene Coordinator's intentions regarding opening the mine, and an
adverse inference instruction or presumption that the spoliated evidence would have been
unfavorable to the Federal Parties with respect to the Plaintiffs' negligence claims and the
application of the discretionary function exception. See Doc. 1181 at 31. Briefing on the Motion
for Sanctions Due to the Federal Parties' Spoliation of Evidence has not been completed.
Given the Plaintiffs' allegations that the Federal Parties spoliated evidence that perhaps
would have been unfavorable to the Federal Parties with respect to the application of the
discretionary function exception, the Court finds that it would be premature to rule on the merits
of the Federal Parties' motion to dismiss based on the discretionary function exception before the
Court addresses the spoliation issue. The Court denies the Federal Parties' motion to dismiss based
on the discretionary function exception without prejudice. The Court may allow the Parties to readdress the issue after the Court rules on the Motion for Sanctions Due to the Federal Parties'
Spoliation of Evidence.

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Clean Water Act Claim
New Mexico has asserted a cause of action against the Administrator of EPA pursuant to
the Clean Water Act ("CWA") which provides:
A Governor of a State may commence a civil action ... 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). New Mexico alleges that:
Colorado has failed to permit numerous inactive or abandoned mines in the Upper
Animas River Basin, and elsewhere, that are discharging acid mine drainage and
pollutants into navigable water. Past and present discharges from these inactive
mines—including but not limited to the Gold King Mine release—have entered and
are still entering New Mexico's water and are causing adverse effects on the public
health and welfare in New Mexico.
New Mexico's Second Amended Complaint ¶ 148, at 45-46Doc. 339, filed October 17, 2019. New
Mexico seeks an order "[c]ompelling the Administrator of EPA ... to seek abatement of pollution
from numerous inactive and abandoned mines in Colorado that discharge acid mine drainage and
other waste into the Animas River in Colorado and adversely affect the public health and
environment in New Mexico." New Mexico's Second Amended Complaint ¶ 198, at 57.
The Federal Defendants contend that New Mexico's Clean Water Act claim is barred by
the timing of review provision of CERCLA Section 9613(h) which provides: "No Federal court
shall have jurisdiction ... to review any challenges to removal or remedial action selected under
section 9604." 42 U.S.C. § 9613(h). The Federal Defendants state that "EPA is diligently engaged
in a variety of response actions for contamination from the Mining District pursuant to CERCLA
section 9604" and "[b]y seeking a Court order compelling EPA to abate pollution from the [Gold
King Mine] and the Sunnyside Mine Pool, New Mexico asks this Court to engage in exactly the

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type of premature judicial intervention barred by section 9613(h)'s timing of review provision."
Motion at 24-25.
New Mexico argues that its CWA claim is not a challenge to EPA's removal or remedial
actions in the Bonita Peak Mining District Operable Unit 3 because "New Mexico's allegations
make clear that the state's claim for relief is not focused solely on mining discharges within
Operable Unit 3 of the [Bonita Peak Mining District], but instead all discharges that affect the
Animas River watershed." Response at 7. New Mexico's argument appears to be inconsistent
with its response to the Federal Parties' Interrogatory No. 8 which states: "Identify all inactive or
abandoned mines that you contend discharge pollutants into the Animas River in Colorado without
a permit and are causing an adverse effect on the public health or welfare in New Mexico." Doc.
1113-1 at 2, filed February 19, 2021. New Mexico responded stating: "New Mexico objects to
Interrogatory No. 8 as seeking information that is not relevant to any party's claim or defense. This
litigation relates to the August 5, 2015 Gold King Mine release." Doc. 1113-1 at 2.
New Mexico also argues that "[t]here would be no interference with USEPA's cleanup at
the [Bonita Peak Mining District] if New Mexico's requested relief is granted." Response at 7-8.
New Mexico characterizes its "requested relief" as requiring only that EPA issue permits for
discharges, "impose effluent limits," and the "monitoring" of discharges and reporting. Response
at 8. However, New Mexico's Clean Water Act claim does not state New Mexico seeks an order
compelling the EPA Administrator to issue permits, monitor discharges and file reports. Instead,
it seeks an order "[c]ompelling the Administrator of EPA ... to seek abatement of pollution from
numerous inactive and abandoned mines in Colorado." "Abate" means reduce, which entails
something more than monitoring and reporting. Any order from this Court requiring EPA to abate
pollution from mines in the Bonita Peak Mining District would interfere with EPA's ongoing

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response actions for contamination from the Mining District pursuant to CERCLA. See Cannon
v. Gates, 538 F.3d 1328, 1333-35 (10th Cir. 2008) (“According to its plain language, § 9613(h)
strips federal court of jurisdiction once the Government has begun a removal action;" "§ 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”).
The Court dismisses New Mexico's Clean Water Act claim as it relates to the Gold King
Mine and the other mines that are included in EPA's response actions for contamination from the
Mining District. To the extent New Mexico is asserting its Clean Water Act based on "all
discharges that affect the Animas River watershed," the Court dismisses those claims without
prejudice because it appears there has been very little, if any, discovery regarding those other
discharges and fact discovery has closed. The Court will not re-open discovery at this time. The
member cases in this Multi-District Litigation were centralized in the District of New Mexico
because they "involve common questions of fact ["arising from the August 2015 release of
approximately three million gallons of acidic, mine-impacted waters from the Gold King Mine"],
and that centralization in the District of New Mexico will serve the convenience of the parties and
witnesses and promote the just and efficient conduct of this litigation." United States Judicial
Panel on Multidistrict Litigation's Transfer Order, Doc. 1, filed April 4, 2018. Re-opening
discovery for "all discharges that affect the Animas River watershed" would undermine the
purpose of centralizing these cases.
IT IS ORDERED that the Federal Defendants' Motion to Dismiss Claims for Lack of
Subject-Matter Jurisdiction under Fed. R. Civ. P. 12(b)(1), Doc. 1113, filed February 19, 2021, is

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GRANTED in part. The Court DISMISSES the State of New Mexico's Clean Water Act claim.
The Court DENIES without prejudice the Federal Parties' motion to dismiss based on the
discretionary function exception.

________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE

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