Hundreds of Navajo Nation members faced a setback earlier this week when a federal appellate judge ruled they had missed the deadline to file certain claims in their lawsuit over water pollution resulting from the 2015 Gold King Mine spill.
In 2018, about 300 Navajo Nation members who farm or raise livestock along the Animas River and San Juan River in New Mexico sued mining companies, the U.S. Environmental Protection Agency and EPA contractors for their role in the blowout at the inactive mine near Silverton that released millions of gallons of toxic wastewater into the Animas River, which flows into New Mexico. Their complaint, filed in the District of New Mexico, included state law negligence claims. The lawsuit, including the state law claims, was later consolidated into multidistrict litigation that included civil suits from New Mexico and Utah.
One of the contractors, Environmental Restoration, moved to dismiss the complaint from the Navajo Nation members. The company argued the plaintiffs filed their suit nearly three years after the spill, and the statute of limitations to file a claim in Colorado is two years. The plaintiffs countered that New Mexico’s statute of limitations is three years and they filed their suit before that.
Under the Clean Water Act, plaintiffs may preserve certain state law claims, but the court must apply the substantive law of the state where the pollution originated. The U.S. Supreme Court affirmed this in the 1987 case International Paper v. Ouellette. Environmental Restoration points to this precedent to show the plaintiffs filed too late.
However, the plaintiffs argue the International Paper holding applies only to substantive law, not procedural law, such as how to apply a statute of limitations. They say that nothing in the CWA or Supreme Court precedent contradicts the general rule that the forum state’s statute of limitations should apply. If the CWA preempts New Mexico’s three-year deadline, the plaintiffs argue, a federal five-year statute of limitations should be used.
The federal district court judge in Albuquerque agreed with the plaintiffs that New Mexico’s three-year limit applied to their state claims and denied the motion to dismiss.
But the 10th Circuit Court of Appeals reversed that decision on May 3, finding that applying New Mexico’s statute of limitations would be inconsistent with Congress’ objectives in passing the CWA, including efficiency, predictability and certainty in determining liability for pollutant discharge. The U.S. Supreme Court’s analysis in International Paper “applies equally to the application of all law — including procedural — that is inconsistent with Congress’s full purposes and objectives,” states the 10th Circuit opinion written by Judge Joel Carson. The court sent the case back to the district court “for proceedings not inconsistent with this opinion.”
Several of the claims in the multidistrict litigation have already settled. The EPA announced on April 29 that the U.S. District Court for the District of New Mexico approved a $90 million settlement in which the government, Sunnyside Gold Corporation and its Canadian parent company Kinross Gold Corporation will pay to settle certain claims regarding the Bonita Peak Mining District Superfund Site, which includes the Gold King Mine and other abandoned mines near Silverton. Under that agreement, the mining companies will pay Colorado about $4 million.
In earlier settlements, Sunnyside agreed to pay New Mexico and the Navajo Nation a combined $21 million while setting aside $1.6 million for Colorado. Sunnyside doesn’t operate Gold King Mine but owns a nearby mine that Gold King’s owner has alleged was responsible for the buildup of wastewater, according to media reports. The EPA has so far spent more than $75 million cleaning up the site.