The U.S. Department of Justice, on behalf of the Environmental Protection Agency, has asked that a federal court dismiss a lawsuit filed by members of the Navajo Nation seeking repayment of damages associated with the 2015 Gold King Mine spill.
For more than three years, those affected by the mine blowout have been awaiting compensation for damages they sustained in the spill, which was triggered while the EPA was cleaning up the site north of Silverton.
The spill dumped 3 million gallons of mine wastewater laced with potentially toxic metals into the Animas and San Juan rivers, affecting three states (Colorado, Utah and New Mexico) and two Native American tribes (Navajo Nation and Southern Ute Indian Tribe).
While the EPA initially encouraged people and businesses to file claims for financial losses, the agency backtracked in January 2017, saying it was legally protected from any damages associated from the spill.
The states of New Mexico and Utah, as well as the Navajo Nation, filed lawsuits seeking compensation. New Mexico is seeking $130 million, Utah is seeking $1.9 billion, and the Navajo Nation is seeking $130 million.
Over the summer, the EPA, through the Department of Justice, filed similar requests to dismiss the claims, arguing the agency is protected from litigation under federal law.
The motion filed Thursday argues the same point in seeking to dismiss a lawsuit that represents about 300 individual members of the Navajo Nation who claim a cumulative of $75 million in damages.
“What’s noteworthy is that these Navajo folks are exactly the people the EPA took responsibility for harming,” said Katherine Ferlic, an attorney representing the tribal members. Ferlic works with Egolf, Ferlic & Harwood, a Santa Fe-based law firm.
“And now, instead of answering the complaint and taking responsibility, they (the EPA) are trying to use a legal loophole to get these claims dismissed,” she said.
The Department of Justice’s motion argues the EPA is protected under the Federal Tort Claims Act, which gives federal agencies a “discretionary function exemption.”
The EPA was acting according to the Comprehensive Environmental Response Compensation and Liability Act by evaluating the mine for remediation and preventing environmental pollution of the Animas River watershed when the inadvertent release occurred, the motion states.
The motion states that so far, the EPA has spent $29 million on past and continuing efforts to address mine pollution in the Animas River watershed, including building a temporary water treatment plant and designating the area as a Superfund site.
The stage was set for a blowout at the Gold King Mine years before the EPA became involved in the situation.
With the plugging of the American Tunnel, many researchers and experts of the mine district around Silverton believe the waters of the Sunnyside Mine pool backed up, causing the Gold King Mine to discharge mine wastewater.
The problem became such an issue that in 2014, the EPA was asked to step in. It was the next year that contract crews dug too far into the collapsed portal of the Gold King Mine, triggering a blowout on Aug. 5.
The lawsuit on behalf of Navajo members says the spill, which carried arsenic and lead, prevented them from using water for their crops and care for their animals, as well as personal use.
“As members of the Navajo Nation, Plaintiffs have an enormous cultural and spiritual connection to the land and waters of the Animas River and San Juan rivers,” the original lawsuit states. “As a result of the spill, Plaintiffs have experienced great spiritual and emotional distress.”
Ferlic said a hearing Monday will brings together her clients, the states of Utah and New Mexico, as well as the Navajo Nation, to set a date to discuss the motions to dismiss.
“We’re kind of all in the same place,” she said. “The EPA was negligent in causing the mine spill, the EPA took responsibility for causing the mine spill, and now they seek to shirk that responsibility by filing a motion to dismiss rather than pay the claims.”
Attempts to reach EPA officials late Friday were unsuccessful.