New Mexico ex rel. N.M. Env’t Dep't v. U.S. Envtl. Prot. Agency
Citation | 310 F.Supp.3d 1230 |
Decision Date | 12 February 2018 |
Docket Number | No. 16–CV–465 MCA/LF, No. 16–CV–931 MCA/LF,16–CV–465 MCA/LF |
Parties | The State of NEW MEXICO ON BEHALF OF the NEW MEXICO ENVIRONMENT DEPARTMENT, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Gina McCarthy in her official capacity as Administrator, United States Environmental Protection Agency; Environmental Restoration, LLC; Kinross Gold Corporation; Kinross Gold U.S.A., Inc. ; and Sunnyside Gold Corporation, Defendants. and Navajo Nation, a federally recognized Indian Tribe, on its own behalf, and as parens patriae on behalf of the Navajo people, Plaintiff, v. U.S. Environmental Protection Agency; Environmental Restoration, LLC; Harrison Western Corporation; Gold King Mines Corporation; Sunnyside Gold Corporation ; Kinross Gold Corporation; Kinross Gold U.S.A., Inc. ; and Does 1–10, Defendants. |
Court | U.S. District Court — District of New Mexico |
Cholla Khoury, New Mexico Attorney Genderal's Office, Santa Fe, NM, William James Jackson, Ann L. Al–Bahish, John D.S. Gilmour, Jordan A. Rodriguez, Lauren K. Valastro, Jackson Gilmour & Dobbs, PC, Houston, TX, Jordon P. George, Marcus J. Rael, Jr., Robles Rael & Anaya, PC, Albuquerque, NM, Andrew K. Walsh, Kasey L. Mitchell, Moez M. Kaba, Hueston Hennigan LLP, Los Angeles, CA, John C. Hueston, Hueston Hennigan LLP, Newport Beach, CA, Paul Spruhan, Navajo Nation Department of Justice, Window Rock, AZ, for Plaintiffs.
Brian H. Lynk, John A. Bain, Michael Williams, Sarah Williams, Simi Bhat, William G. Powers, Meghan Elizabeth Greenfield, U.S. Department of Justice, Washington, DC, Terry Farmer, Brittany M. Sayer, Moses, Dunn, Farmer & Tuthill, P.C., Albuquerque, NM, Andriy Pazuniak, Terry D. Avchen, Peter Sheridan, Christensen, Weil, Fink, Howard LLP, Los Angeles, CA, Bradford C. Berge, Holland & Hart LLP, Santa Fe, NM, Elizabeth H. Temkin, Davis Graham & Stubbs LLP, Scott W. Hardt, Temkin Hardt & Longenecker LLP, Darin J. Lang, Hall & Evans, LLC, Denver, CO, Neil G. Westesen, Crowley Fleck PLLP, Bozeman, MT, Paul C. Collins, Christopher C. Stoneback, Jeffery J. Oven, Crowley Fleck PLLP, Billings, MT, Mark L. Stermitz, Crowley Fleck PLLP, Missoula, MT, Anthony D. Edwards, Sholler Edwards, LLC, Durango, CO, for Defendants.
M. CHRISTINA ARMIJO, United States District Court JudgeTHIS MATTER is before the Court on Defendant Environmental Restoration, LLC's Motion to Dismiss the Complaint [Doc. 1] and Motion to Strike [Doc. 32], pertaining to the Complaint filed by the State of New Mexico; and Defendant Environmental Restoration, LLC's Motion to Dismiss the Complaint [Doc. 1] and Motion to Strike [Doc. 101], pertaining to the Complaint filed by the Navajo Nation. The Court has considered the submissions, the relevant law, and is otherwise fully advised in the premises. The Court grants-in-part, denies-in-part, and, in-part, holds in abeyance ER's Motions.
This opinion addresses all arguments raised by Defendant Environmental Restoration (hereafter, ER) with the exception of its arguments based on the jurisdictional bar set forth at 42 U.S.C. § 6972(b)(2)(B)(ii) and 42 U.S.C. § 9613(h). The Court has requested additional briefing and evidence with respect to whether certain of Plaintiffs' claims are barred by the above provisions, and the briefing, which remains in progress. Nonetheless, the Court herein addresses the remaining issues raised by ER.
On May 23, 2016, New Mexico filed its Complaint stemming from the Gold King mine spill which occurred on August 5, 2015. [16–CV–465, Doc. 1]1 On August 16, 2016, the Navajo Nation filed its Complaint based on the Gold King mine spill. [16–CV–931, Doc. 1] On November 28, 2016, this Court consolidated the two cases. [Doc. 90] Both Plaintiffs filed motions for leave to amend their complaints. [Doc. 86; Doc. 141]
Generally, both Plaintiffs allege that, while conducting environmental remediation of the Gold King Mine in Colorado, the Environmental Protection Agency (hereafter, EPA), ER (a contractor for the EPA), and others "breached a collapsed portal" of the mine, "releasing over three million gallons of acid mine drainage and 880,000 pounds of heavy metals into the Animas River watershed." The acid mine drainage traveled down-river, into the San Juan River, into New Mexico, and into the Navajo Nation, causing extensive environmental and economic damage. [Doc. 1, ¶¶ 1–3; 16–CV–931, Doc. 1, ¶¶ 4, 24]
New Mexico brings six causes of action against ER: cost recovery and declaratory judgment under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); injunctive relief under the Resource Conservation and Recovery Act (RCRA); public nuisance; trespass; and "negligence and gross negligence." [Doc. 1, pp. 32–48; Doc. 86–1, pp. 41–61] Navajo Nation brings seven causes of action against ER: cost recovery and declaratory judgment under CERCLA; negligence; gross negligence; trespass; public nuisance; and private nuisance. [16–CV–931, Doc. 1, pp. 34–46; Doc. 141–1 pp. 46–58] ER challenges each cause of action by both Plaintiffs. [Doc. 32; Doc. 101]
While both Plaintiffs have moved for leave to amend their complaints [Doc. 86; Doc. 141], those motions are opposed and remain pending.2 On January 23, 2017, this Court entered a Memorandum Opinion and Order3 stating that this Court will consider whether dismissal of the proposed amended complaints would be appropriate in light of the various Defendants' Motions to Dismiss , thus analyzing whether the proposed amended complaints would be futile. [Doc. 118, p. 6] The Court further rejected ER's arguments that New Mexico's Motion for Leave to File Amended Complaint was untimely and that it prejudiced ER. [Doc. 118, pp. 6–7] Having addressed these issues, the only issue remaining to be considered in determining whether to grant New Mexico's (as well as Navajo Nation's) Motion for Leave to File Amended Complaint is whether amendment would be futile. Accordingly, for purposes of the ER's Motions to Dismiss Plaintiffs' claims, the Court considers the facts as alleged in the Proposed Amended Complaints , thereby conducting the futility analysis. [Doc. 86–1; Doc. 141–1] If dismissal is proper as against ER based on the facts alleged therein, then amendment of the claims as against ER would be futile and the claims against ER must be dismissed.
Finally, on December 11, 2017, ER filed a Motion to Transfer for Coordinated or Consolidated Pretrial Proceedings Under 28 U.S.C. § 1407 with the United States Judicial Panel on Multidistrict Litigation. [Doc. 191–1] Thereafter, the United States filed a Motion to Temporarily Stay Proceedings Pending Decision by the Judicial Panel on Multidistrict Litigation. [Doc. 191] Some parties oppose the Motion to Stay , or oppose only a delay of the decision on their pending motions to dismiss. [Doc. 191, p. 2; Docs. 192, 195, 199] The Court does not address the Motion to Stay [Doc. 191] in this Memorandum Opinion and Order. The Court exercises its discretion to rule on the present motion only, concluding that no cause has been shown to stay the issuance of this decision, including the factors of judicial economy and avoiding hardships and inequities to the moving party. See Pace v. Merck & Co., Inc. , CIV 04–1356 MCA/ACT, 2005 WL 6125457, *1 (D.N.M. 2005) ( ).
New Mexico alleges:
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