EPA’s motion to dismiss Gold King lawsuit denied

WINDOW ROCK

The U.S. government’s motion to dismiss a $2 billion lawsuit over the 2015 Gold King Mine Spill was denied by a federal judge Feb. 28.

The suit was filed by the Navajo Nation, 300 of its members, and the states of New Mexico and Utah.

U.S. District Judge William P. Johnson issued his decision in federal court in Albuquerque.

The lawsuit was filed after a 2015 spill dumped 3 million gallons of wastewater into the Animas River, which merges with the San Juan River that flows through the Navajo Nation and into Lake Powell.

Contaminated water was accidentally released during an Aug. 5, 2015, excavation conducted by the EPA at the mine site. EPA contractors breached the wall of a flooded underground reservoir, releasing mineral-laden water into Cement Creek, near Silverton, Colorado, which feeds into the Animas River.

The EPA, under Barack Obama’s administration at the time, said it would compensate anyone who was affected by the accident. But in 2017, they suddenly said they would not be paying any more claims. The EPA said that the agency was conducting official business at the mine site when the spill occurred, and was protected under the Federal Torts Claims Act. To this date, no claims have been paid.

“Because the agency was conducting a site investigation at the Gold King Mine under the Comprehensive Environmental Response, Compensation, and Liability Act, the agency’s work is considered a ‘discretionary function’ under this law,” their 2017 statement read. “Therefore, the circumstances surrounding the Gold King Mine incident unfortunately do not meet the conditions necessary to pay claims.”

The tribe filed a $160 million lawsuit against the EPA because its then Administrator Gina McCarthy said under oath the EPA caused the spill and would hold themselves accountable.

In August of last year, the law firm Egolf, Ferlic & Harwood of Santa Fe filed suit on behalf of about 300 Navajo individuals and their families, totaling nearly $70 million.

One of those farmers, Earl D. Yazzie, from Shiprock, was “unable to irrigate his crops” because of the spill, the complaint states. As a result, the lawsuit stated, Yazzie lost most or all his harvest.

The suit said Yazzie filed for personal injury and property damage on August 3, 2017. It did not say how much Yazzie was seeking, only that the amount would be determined at trial.

Yazzie, in an August 2015 interview with the Navajo Times, said he and his wife, Cheryle, had stopped watering their squash, corn, watermelons and cantaloupe since the accident.

“People see us out here every day, hoeing away in the middle of the day and heat, sunburned,” Yazzie said at the time. “It is a labor of love.”

“Me and my wife Cheryle, we sell our crops and hand them out. We also donate some of it to the women’s shelter here in Shiprock,” he added.

The speaker of the 23rd Navajo Nation Council, LoRenzo Bates, said in 2017 about 6,000 acres of farmland along the San Juan River was affected by the spill.

While the Obama administration said the incident did not meet conditions necessary to pay any claims, President Donald Trump and his administration said they would reconsider.

Recent winter storms caused the water treatment plant at the Bonita Peak Superfund site in Gladstone, Colorado, to lose power on March 14, allowing more contaminated water to leak into the river systems.

The power has since been restored, said the EPA, but not before 250 to 300 gallons per minute was leaked for about two days.

“At this time, EPA expects no impacts to downstream drinking water or agricultural users associated with the short-term shutdown of the plant,” the statement read after power was restored on Saturday.

Utah is seeking $1.9 billion, New Mexico $130 million and the Navajo Nation $162 million. All of the suits have been consolidated and are being heard by Johnson in Albuquerque.

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