McDaniel et al v. United States of America et al
Filing
566
MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson Denying Weston's Motion for Partial Summary Judgment to Dismiss the McDaniel Plaintiffs' Claims for Stigma Damages 1490 (473 in 1:17-cv-00710-WJ-SCY, 1490 in 1:18-md-02824-WJ) (1490 in 1:18-md-02824-WJ, 473 in 1:17-cv-00710-WJ-SCY). Associated Cases: 1:18-md-02824-WJ, 1:17-cv-00710-WJ-SCY (bap)
Case 1:17-cv-00710-WJ-SCY Document 566 Filed 06/07/22 Page 1 of 5
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. 17-cv-710-WJ-SCY
MEMORANDUM OPINION AND ORDER
DENYING WESTON'S MOTION FOR PARTIAL SUMMARY JUDGMENT TO
DISMISS THE McDANIEL PLAINTIFFS' CLAIMS FOR STIGMA DAMAGES
The McDaniel Plaintiffs are 14 residents of Aztec, New Mexico, who own interests in
properties adjacent to the Animas River in northern New Mexico and who allege they sustained
personal injury and property damage as a result of the release from the Gold King Mine. See
Second Amended Complaint at 2-3, Doc. 6, filed September 26, 2017, in McDaniel v. United
States, No. 1:17-cv-00710-WJ-SCY.
Weston asks the Court to dismiss the McDaniel Plaintiffs' claims for diminution of property
value due to environmental stigma. See Weston Solutions, Inc.'s Motion for Partial Summary
Judgment to Dismiss the McDaniel Plaintiffs' Claims for Stigma Damages, Doc. 1490, filed March
7, 2022 ("Motion"); Environmental Restoration, LLC's Notice of Joinder, Doc. 1492, filed March
7, 2022; Federal Parties' Notice of Joinder, Doc. 1496, filed March 7, 2022. Weston states that
"Stigma damages arise when a defendant creates a negative public perception which diminishes
the value of a plaintiff's property." Motion at 10. "The McDaniel Plaintiffs retained ... a local real
estate agent ... [who] opines that the Gold King Mine Spill would result in a diminution of value
of each of the McDaniel Plaintiff properties on the order of 75-90% of the unimpaired value."
Motion at 9, ¶ 17, 10.
Under Colorado state law:
Case 1:17-cv-00710-WJ-SCY Document 566 Filed 06/07/22 Page 2 of 5
plaintiffs can recover post-repair stigma damages where real property was damaged
and repairing the real property will not restore the lost value. See, Vista Resorts,
Inc. v. Goodyear Tire & Rubber Co., 117 P.3d 60, 69 (Colo. App. 2004). However,
Colorado has not addressed the issue of whether plaintiffs can recover stigma
damages where there has been no physical damage to property. Therefore, the Court
will look to other jurisdictions for guidance ... The Court is persuaded by the outof-state authorities cited by Defendants and finds as a matter of law that stigma
damages are not compensable without physical injury to real property.
James L. Parks Elk Creek, LLC v. Wheeler, 2020 WL 8994309 *1-*2 (D. Colo. 2020) (discussion
of out-of-state authorities regarding stigma omitted).
The McDaniel Plaintiffs "retained Elvin Chavez, a President and owner of Sangre de Cristo
Sciences, LLC, to testify at trial about the potentially increased levels of heavy metals identified
from the water and soil sampling of the McDaniel Plaintiffs’ properties." Motion at 4, ¶ 3.
Mr. Chavez authored two reports regarding his sampling at the McDaniel Plaintiffs’ properties.
See Motion at 4, ¶ 5. Weston contends:
the McDaniel Plaintiffs may not recover stigma damages because Mr. Chavez fails
to establish that their properties sustained harm, damage, or injury as a result of the
Gold King Mine Release. First, the Chavez Reports did not substantiate an
increased presence of contaminants on the McDaniel Plaintiffs’ properties due to
the Gold King Mine release because the sample size was too small, and he did not
establish a baseline to compare pre-release contaminant levels. See UMFs 3, 6, 15.
The Chavez Reports did not consider other potential sources of contamination. See
UMF 7. Chavez admits that he did not obtain a statistically accurate determination
of the contamination of the Gold King Mine spill. See UMF 6. As a whole, the
Chavez Reports are inconclusive as to whether any contamination, if any exists on
the McDaniel Plaintiffs’ properties, is attributable to the Gold King Mine release.
See UMF 15. In addition, every sample collected and documented in the Chavez
Reports fell within the acceptable ranges of MCLs1 for USEPA’s primary,
enforceable standards. See UMFs 9-11, 13. Because the Chavez Reports did not
establish any exceedances of USEPA’s primary standards, the McDaniel Plaintiffs
have not marshaled sufficient evidence to demonstrate harm to their real property.
Lastly, the lack of continuity of sampling locations reveals that the Chavez Reports
MCLs are "maximum contaminant levels" which are enforceable drinking water standards which
have been "established to protect the public against consumption of drinking water contaminants
that present a risk to human health. An MCL is the maximum allowable amount of a contaminant
in drinking water." Doc. 1490-10 at 27.
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fail to capture any potential patterns of contaminant migration on the McDaniel
Plaintiffs’ properties. See UMF 11(a), 12.
Motion at 12-13.
The McDaniel Plaintiffs do not dispute Weston's assertion that "every sample collected and
documented in the Chavez Reports fell within the acceptable ranges of MCLs for USEPA’s
primary, enforceable standards" stating:
While no samples taken directly from onsite drinking water exceeded binding
MCLs, several of those samples did demonstrate elevated levels of metals subject
to secondary standards2 and river water directly adjacent to drinking water sources
exhibited elevated levels of multiple heavy metals.
Response at 7, ¶ 10 (citations to record omitted). The McDaniel Plaintiffs also cited to Mr. Chavez'
deposition during which he testified: (i) "their groundwater wells were adjacent to the river, and
their filters were being plugged by the orange sediment in it;" (ii) "the ground was still kind of
orange on top;" (iii) "I saw the filters from some of these people's wells. And if the water flowed
away from their property, these filters wouldn't have the sediments that was orange, the same that
was in the riverbeds and in the water on them if it didn't impact them;" (iv) "I asked the question:
How often do you change these filters? In a normal period, once a year. They were replacing them
every other day at this point." Response 13, 70, 73, 77-78. Some Plaintiffs have alleged that the
water released from the Gold King Mine was "orange-brown." Allen Plaintiffs' Second Amended
Complaint at 110, ¶ 362, Doc. 445, filed January 21, 2020.
The Court denies Weston's Motion because it fails to show that Weston is entitled to
judgment as a matter of law.
Secondary MCLs are "nonmandatory water quality standards for 15 contaminants. EPA does not
enforce these secondary maximum contaminant levels. They are established as guidelines to assist
public water systems in managing their drinking water for aesthetic considerations, such as taste,
color, and odor. These contaminants are not considered to present a risk to human health at the
secondary maximum contaminant level." Doc. 1490-10 at 27.
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The party moving for summary judgment bears the initial burden of showing an
absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where, as here, the burden of persuasion
at trial would be on the nonmoving party, the movant may carry its initial burden
by providing “affirmative evidence that negates an essential element of the
nonmoving party's claim” or by “demonstrat[ing] to the Court that the nonmoving
party's evidence is insufficient to establish an essential element of the nonmoving
party's claim.” Id. at 331, 106 S.Ct. 2548.
If the movant makes this showing, the burden then shifts to the nonmovant to “set
forth specific facts showing that there is a genuine issue for trial.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If
the nonmovant “fails to make a showing sufficient to establish the existence of an
element,” the Federal Rules of Civil Procedure “mandate[ ] the entry of summary
judgment.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
Tesone v. Empire Marketing Strategies, 942 F.3d 979, 994 (10th Cir. 2019).
Weston's Motion is based in large part on drinking water samples taken in 2016
approximately one-half year after the August 5, 2015, release from the Gold King Mine. See
Motion at 4, ¶ 5 (referring to "February 2016 Quarterly Sampling Event" and "Special Spring
Runoff Report for April/May 2016 Sampling Event"). Weston argues that because none of the
samples contained contaminants above the EPA MCLs, there is no evidence that Plaintiffs'
properties were harmed. The sample results cited by Weston do not negate the McDaniel Plaintiffs'
claims that they sustained personal injury and property damage due to the Gold King Mine release
because those sample results show only that the drinking water did not exceed MCLs in 2016.
Weston has not shown that those sample results represent the drinking water quality from August
2015 through January 2016, and, consequently, has not shown that contaminants from the release
did not impact the McDaniel Plaintiffs' drinking water shortly after the release.
The McDaniel Plaintiffs have shown that there is a genuine issue of material fact as to
whether they sustained property damage as a result of the release from the Gold King Mine. The
McDaniel Plaintiffs have cited evidence, the orange sediment clogging their groundwater well
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filters, indicating that contaminants from the Gold King Mine release may have entered their
drinking water. The fact that the drinking water samples from 2016 do not contain contaminants
exceeding MCLs does not preclude the McDaniel Plaintiffs from asserting claims for diminution
of property value due to environmental stigma because Colorado law allows for stigma damages
for temporary harms to property. See Vista Resorts, Inc. v. Goodyear Tire & Rubber Co., 117 P.3d
60, 69 (Colo. App. 2004) ("Damages recoverable for injury to property that has been remediated
include repair costs and post-repair diminution in value, if any").
IT IS ORDERED that Weston Solutions, Inc.'s Motion for Partial Summary Judgment to
Dismiss the McDaniel Plaintiffs' Claims for Stigma Damages, Doc. 1490, filed March 7, 2022, is
DENIED.
________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE
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