B.H. v. Gold Fields Mining Corp.

• Citation: 506 F.Supp.2d 792
• Decision Date: 01 February 2007
• Docket Number: No. 04-CV-0564-CVE-PJC.,04-CV-0564-CVE-PJC.
• Parties: B.H., a minor child, by and through her natural parents and guardians, Billie and Jackie Holder, et al., Plaintiffs, v. GOLD FIELDS MINING CORPORATION, et al., Defendants/Third Party Plaintiffs, v. United States of America, et al., Third-Party Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

506 F.Supp.2d 792

B.H., a minor child, by and through her natural parents and guardians, Billie and Jackie Holder, et al., Plaintiffs, v. GOLD FIELDS MINING CORPORATION, et al., Defendants/Third Party Plaintiffs, v. United States of America, et al., Third-Party Defendants.

No. 04-CV-0564-CVE-PJC.

United States District Court, N.D. Oklahoma.

February 1, 2007.

Bradford D. Barron, Richard D. Gibbon, Zachary T. Barron, Gibbon Barron & Barron PA, Kris Ted Ledford, Patrick Hoyt Kernan, Kernan & Ledford, Tulsa, OK, Carolyn Peddy Courville, David S. Siegel, Michael P. Fritz, Stephen Daily Susman, Vineet Bhatia, Susman Godfrey LLP, Houston, TX, for Plaintiffs.

Chris A. Paul, Robert Joseph Joyce, David Michael Vonhartitzsch, Joyce Paul & McDaniel PC, Karissa K. Cottom, Terrance Lane Wilson, Hall Estill Hardwick Gable Golden & Nelson, Archer Scott McDaniel, Stacy L. Acord, McDaniel Law Firm, Jon M. Payne, Newton O'Connor Turner & Ketchum PC, Tulsa, OK, Kirk Forbes Marty, Mark Douglas Anstoetter, Rebecca Joy Schwartz, Stanley D. Davis, Tristan L. Duncan, Shook Hardy & Bacon LLP, Kansas City, MO, Charles David Goerisch, Richard A. Ahrens, Robert J. Will, Thomas P. Berra, Jr., Lewis Rice & Fingersh LC, Saint Louis, MO, for Defendants/Third Party Plaintiffs.

Jason S. Patil, Civil Division Environmental Torts, Washington, DC, Loretta Finiece Radford, Neal B. Kirkpatrick, United States Attorney's Office, Ronald N. Ricketts, Gable & Gotwals, Barry Greg Reynolds, Titus Hillis Reynolds Love Dickman & McCalmon, Shelley Lambert Carter, Stephen Richard Ward, Conner & Winters, Tulsa, OK, Bill Robins, III, Heard Robins Cloud Lubel & Greenwood LLP, Santa Fe, NM, John Anthony Nicholas, Blanchard Robertson Mitchell & Carter PC, Joplin, MO, for Third-Party Defendants.

Judy Garner Vanderflute, Pro se.

OPINION AND ORDER

EAGAN, Chief Judge.

Now before the Court are Defendants Blue Tee Corp. and Gold Fields Mining Corporation's Motion for Partial Summary Judgment (Dkt.# 360) and Supplement to Blue Tee and Gold Field's Motion for Partial Summary Judgment (Dkt.# 421).

I.

The Tar Creek Superfund Site ("Tar Creek") is located in a 40 square mile area of northeastern Oklahoma that was historically the site of lead and zinc mining throughout the twentieth century. Tar Creek includes the communities of Picher, Cardin, Commerce, Quapaw, and North Miami in Ottawa County, Oklahoma. This case was brought on behalf of minor children residing in Picher and Cardin who allege that defendants' mining activities contaminated their communities and caused children to suffer permanent neurocognitive disabilities due to lead poisoning. Plaintiffs claim that defendants' actions constitute public and private nuisance under Oklahoma law, and plaintiffs seek injunctive relief, and actual and punitive damages. Defendants Blue Tee Corp. ("Blue Tee") and Gold Fields Mining Corporation ("Gold Fields") have filed a motion for partial summary judgment on plaintiffs' claim for injunctive relief and plaintiffs' claims for public and private nuisance to the extent defendants' activities occurred on restricted Quapaw lands.

Historical Mining Activities at Tar Creek

Early in the twentieth century, significant deposits of lead and zinc were discovered in southeastern Kansas and northeastern Oklahoma. Originally, mining activities were relatively small operations, but in the 1920s larger mining companies operated in the Tar Creek area. The defendants in this case are successor entities. Blue Tee is the successor to American Zinc, Lead & Smelting Company ("American Zinc"), and Gold Fields was formerly known as Tri-State Zinc, Inc. ("Tri-State"). Mining companies removed ore from the ground, stripped the ore of any valuable metals, and deposited waste material on the surface. Millions of tons of waste were left in Tar Creek in the form of chat piles and tailings ponds. Defendants assert that their companies were responsible for a minimal amount of the lead waste left behind in Tar Creek.¹

The mining companies generally did not own the land, but obtained sub-surface leases or contracts to remove lead and zine ore from the ground.² Some of the land in northeastern Oklahoma was owned by members of the Quapaw Tribe in the form of allotments from the federal government, and this land was subject to federal regulation by the Department of Interior. In order to lease subsurface rights to restricted Quapaw land, mining companies had to execute a form lease approved by the Department of Interior and abide by certain federal regulations. Tri-State operated the White Mine from 1927 to 1930, and it later opened the Ottawa Mill in 1929 to remill chat from the White Mine. In 1932, Tri-State obtained permission to remove tailings from restricted Quapaw land leased by the Eagle Picher Company ("Eagle Picher") and remill the tailings at the Ottawa Mill. The Department of Interior required Tri-State to execute tailings retreatment contracts to remove tailings from Quapaw land. The contracts provided that Tri-State could remill tailings removed from the property under the following conditions:

a. [Tri-State may] remove therefrom for the purpose of remilling and cleaning the tailings, chats and sands hereinafter described.

b. [Tri-State], by proper means of transportation to be by it selected, may haul and transport the chat and tailings in the [designated pile] to its mill or concentrating plant ... where such material may be mixed and co-mingled with other like material for purposes of extracting the metallic content thereof.

c. Tailings and other waste material resulting from said operation shall be allocated to each respective tract equal to the tonnage removed therefrom less concentrates extracted and first party agrees to store the same free of charge to the landowner with the right and privilege to the landowner to enter and remove the same.

d. Party of the second part ... shall so pile the tailings and other waste material on the mill site so as not to interfere with the mine operations on this land.

e. The right is reserved in the Secretary of the Interior and to the Superintendent of the Quapaw Agency ... to inspect and check said operations at any and all reasonable times for the purpose of ascertaining whether the provisions of the Department of Interior regulations and the terms and provisions of this agreement are being complied with....

Dkt. # 360, Ex. 17, at 27. In 1935, Tri-State constructed the Sooner Mill for the purpose of expanding its remilling operations. The Sooner Mill was located in the northwest quarter of Section 16, T-29-N, R-23-E and the land consisted entirely of allotments owned by Quapaw Indians. After 1935, Tri-State entered additional tailings retreatment contracts with members of the Quapaw tribe. Between 1929 and 1947, Tri-State processed tailings from the following locations within Quapaw territory: (1) all of section 16, T-29-N, R-23-E; (2) NE/4 of section 21, T-29-N, R-23-E; (3) NE/4, NW/4 of section 21, T-29-N, 23-E; (4) SE/4 of SE/4 of Section 17, 29-N, R-23-E; (5) SE/4 of SW/4 of Section 17, T-29-N, R-23-E, (6) NW/4 of SW/4 of Section 17, T-29-N, R-23-E; and (7) SE/4 of NW/4 of Section 17, T-29-N, R-23-E.³

American Zinc obtained subsurface leases in Ottawa County when it purchased the assets of the Nellie B. Company in October 1951, including the following leases on restricted Quapaw land: (1) the Thomas Buffalo Allotment-NW/4 and NE/4, SW/4 Section 28, T-29-N, R-23-E; (2) Buffalo Calf Allotment-NE/4, Section 28, T-29-N, R-23-E; (3) Frank Buffalo Allotment-SE/4, and SE/4, SW/4 Section 28, T-29-N, R-23-E; (4) Mary Calf Allotment-W/2, SW/4 Section 28, T-29-N, 23-E, E/2, SE/4, and NW/4, SE/4 Section 29, T-29-N, R-23-E. American Zinc also entered into an agreement with Eagle Picher to sell chat from the Eagle Picher Central Mill. From 1951 to 1973, the remilling operations of American Zinc took place at the Barbara J and Rialto Mills.

Remilling produces tailings and chat, which are byproducts of the remilling process. Chat and tailings were deposited on the surface. Defendants claim that they were contractually bound to leave the byproducts on the surface, but plaintiffs dispute this claim. Plaintiffs claim that mining companies left chat on the surface with the intent to extract more lead from the chat as remilling technology improved. They also claim that defendants' contracts permitted them to store lead waste in a manner that would have prevented contamination from lead dust. Defendants claim that the Ottawa, Sooner, and the Barbara J and Rialto Mills were "subject to control by the Department of Interior."⁴ Dkt. # 360, at 22.

The Tar Creek Superfund Site

In 1983, the Environmental Protection Agency ("EPA") placed approximately 40 square miles of northeastern Oklahoma on the National Priorities List ("NPL"), and the area was designated as the Tar Creek. The EPA notified mining companies that they could be held liable as potentially responsible parties ("PRPs"), and the EPA launched an investigation into the lead contamination found in the groundwater and surface contamination in the region. In 1991, the EPA entered a consent decree with several PRPs, including Gold Fields and Blue Tee, requiring payment of $1,273,000 for the investigation and remediation of groundwater and surface water in Tar Creek. Subsequently, in 1993, the Indian Health Service conducted a study of children in Ottawa County, and found that 35% of children had blood lead levels exceeding the Center for Disease Control ("CDC") minimum level of concern.⁵ The EPA acknowledged as early as 1994 that many children in Tar Creek had elevated blood lead levels, and it determined that additional investigation was necessary.

In September 1994, the EPA requested additional information from PRPs regarding the sources and cause of lead contamination. Specifically, the EPA requested:

information relating to the identification, nature, and quantity of materials which have...