State of New Mexico v. United States Environmental Protection Agency

Filing 49

TRANSFER ORDER re: pldg. ( 1 in MDL No. 2824) Transferring 1 action(s) to Judge William P. Johnson in the D. New Mexico.Signed by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 4/4/2018. Associated Cases: MDL No. 2824, NM/1:16-cv-00465, NM/1:16-cv-00931, NM/1:17-cv-00710, UT/2:17-cv-00866 (TB)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: GOLD KING MINE RELEASE
IN SAN JUAN COUNTY, COLORADO,
ON AUGUST 5, 2015

MDL No. 2824

TRANSFER ORDER

Before the Panel:* Defendant Environmental Restoration, LLC, moves to centralize four
actions in the District of New Mexico. The actions are pending in the District of New Mexico (State
of New Mexico, Navajo Nation, and McDaniel) and the District of Utah (State of Utah), as listed on
the attached Schedule A.
All responding defendants support centralization in the District of New Mexico.1
Responding plaintiffs’ positions on centralization vary. The State of New Mexico and Navajo Nation
plaintiffs oppose centralization. The McDaniel plaintiffs support centralization. And the State of
Utah plaintiff argues that the Panel should defer a decision on centralization for at least six months
to facilitate settlement discussions between the state and the federal defendants.
On the basis of the papers filed and the hearing session held, we find that these actions
involve common questions of fact, 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. The actions share factual questions arising from the August 2015 release of approximately
three million gallons of acidic, mine-impacted waters from the Gold King Mine, a shuttered mine
located in southwestern Colorado near the town of Silverton. Water bodies in at least three states
were allegedly affected by the release. Centralization will avoid duplicative, complex discovery2 and
other pretrial proceedings, and eliminate the potential for inconsistent rulings on sovereign
immunity, government-contractor immunity, and other issues.

*

Judge Lewis A. Kaplan took no part in the decision of this matter.

1

Responding defendants are the United States of America, the United States Environmental
Protection Agency, Gold King Mine Corporation, Kinross Gold Corporation, Kinross Gold U.S.A.,
Inc., Sunnyside Gold Corporation, Harrison Western Construction Corporation, and Weston
Solutions, Inc.
2

Discovery may well encompass such matters as the conduct and scope of the EPA’s
activities at the mine prior to the release, the hydrology of the area where the mine is located, the
chemical characteristics of the released water, and the impact, both short and long term, of the
release.

-2In opposition to centralization, plaintiffs in State of New Mexico and Navajo Nation argue
that because there are only four related actions at present, informal coordination and cooperation are
preferable to the creation of an MDL. Given the apparent complexity of the factual issues, as well
as the potential for significant tag-along activity, we reject this argument. In particular, we note that
according to the federal defendants, there are almost 400 related administrative tort claims pending
before the EPA, which could be filed as lawsuits in the near future.
We also reject the State of Utah plaintiff’s request that we defer a decision on Environmental
Restoration’s Section 1407 motion. We see no reason why centralization should negatively affect
the prospect of a settlement between or among any parties to this litigation. Indeed, by bringing all
involved parties before one court, centralization should facilitate any settlement negotiations that
may take place.
We select the District of New Mexico as the transferee district. Three of the four actions are
pending in that district, and its selection is supported by all responding defendants, as well as the
McDaniel plaintiffs. Chief Judge William P. Johnson, to whom we assign the litigation, is an
experienced jurist who already is presiding over the actions in the District of New Mexico. We are
confident that he will steer this litigation on a prudent course.
IT IS THEREFORE ORDERED that the action listed on Schedule A and pending outside
the District of New Mexico is transferred to the District of New Mexico, and, with the consent of
that court, assigned to the Honorable William P. Johnson for coordinated or consolidated pretrial
proceedings.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Ellen Segal Huvelle
Catherine D. Perry

Charles R. Breyer
R. David Proctor

IN RE: GOLD KING MINE RELEASE
IN SAN JUAN COUNTY, COLORADO,
ON AUGUST 5, 2015

SCHEDULE A

District of New Mexico
STATE OF NEW MEXICO v. UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, C.A. No. 1:16-00465
NAVAJO NATION v. UNITED STATES OF AMERICA, ET AL.,
C.A. No. 1:16-00931
MCDANIEL, ET AL. v. UNITED STATES OF AMERICA, ET AL.,
C.A. No. 1:17-00710
District of Utah
STATE OF UTAH v. ENVIRONMENTAL RESTORATION, ET AL.,
C.A. No. 2:17-00866

MDL No. 2824