Duggan
Flanakin
On August 5, five
years to the day after suffering from a 3-million-gallon
spill of heavy-metal-laden toxic wastewater from Colorado’s Gold King Mine,
the State of Utah announced a settlement
of its claims against the U.S. Environmental Protection Agency and several
EPA contractors (who thus far have not been held responsible, accountable or liable)
for their alleged negligence in allowing the spill.
The notorious,
devastating accident turned Cement Creek and the Animas, San Juan and Colorado
Rivers yellow all the way from Colorado through New Mexico and Utah and into
Lake Powell. The settlement is good news. Yet those whose memories of are
faulty at best may not realize that the EPA is still in the throes of a
consolidated lawsuit filed by the State of New Mexico, the Navajo Nation, and a
group of 295 Navajo farmers and ranchers (and 16 other individuals) who were
harmed by the spill.
Indeed, the Obama
Administration made it very clear early on that neither the EPA nor the Federal
Emergency Management Agency would provide just compensation for the damages
caused by the incident, in which an EPA contractor using a backhoe to dig away
rock and debris from the adit (mine portal or entrance) opened the floodgates.
The spill happened because no one had done any testing to determine the height,
volume or quality of water inside the mine.
While the Navajo
Nation hired
the California law firm Hueston Hennigan almost immediately after the
incident to represent its interests, the State of New Mexico on May 23, 2016,
was the first
to formally file a lawsuit seeking to recover damages from the EPA and its
contractors.
New Mexico Environment Secretary Ryan Flynn
explained, “We tried over seven
months to pursue a diplomatic path forward,” but the EPA refused to accept any
responsibility for the spill and its aftermath. Flynn estimated that New Mexico
would lose $130 million in income, taxes, fees and revenues because of
lost tourism, fishing and land use.
The New Mexico lawsuit
also named Obama era EPA Administrator Gina McCarthy, Environmental Restoration, Kinross Gold Corp.,
Kinross Gold USA Inc. and Sunnyside Gold Corp as defendants and responsible
parties. Another major reason for the lawsuit was that New Mexico and the EPA
had been unable to “mutually agree” on a monitoring plan that “appropriately
protects” state and tribal lands.
At the time, EPA
Region 6 spokesperson David Gray asserted that his agency did take responsibility for the cleanup and was working to
reimburse response costs and provide funding for observing monitoring plans
developed by the state and tribe. His words held no sway and were not backed up
by action.
Meanwhile, the
Navajo Nation had its own share of frustrations with the federal response to
the incident. According to Nation Attorney General Ethel Branch, “The impact
has been devastating to our culture and economy, as well as to the peace of
mind of our people. With unknown amounts of fine sediment in our water we now
face the risk of reliving this nightmare with every major increased water flow
event affecting the river.”
The Nation
filed its lawsuit on August 16, 2016 – noting that Navajo farmers had had
to abandon large portions of their fields in the hopes of salvaging limited
plots, and livestock had become dehydrated due to the lack of water that also
dried up corn crops.
In filing the
lawsuit, Navajo Nation President Russell Begaye complained that the tribe had
to fight for even the tiny $1.1 million in compensation provided from the EPA –
which came only after the tribe threatened legal action. “EPA, we’re holding
your feet to the fire. We will not let you get away with this. We will be
here,” Begaye asserted.
Then in August
2017, the EPA reversed Region 6 Administrator Gray’s admission of responsibility.
In February 2018, however, U.S.
District Judge M. Christina Armijo opted to leave the now-consolidated lawsuit intact. Two years later, on July 26, 2018, the EPA again asked
a federal judge to dismiss the case [and the Utah case], claiming that crews
were already working on the cleanup.
In their filing,
the EPA’s attorneys claimed that “Granting
any relief in New Mexico, within the Navajo Nation, or in Utah would conflict
and interfere with EPA's exclusive jurisdiction over its on-going
response action activities and cleanup remedies." [emphasis added] How
paying reparations or assisting private, state and tribal cleanup would
“interfere with” agency jurisdiction was never explained.
A month later, EPA was hit with yet another lawsuit, this one filed on behalf of 295 Navajo farmers and
ranchers from New Mexico. Attorney Kate Ferlic argued that these farmers and
ranchers had lost crops and livestock and had to pay to haul clean water
because they could no longer use water from rivers that were still polluted
with heavy metals and other dangerous chemicals.
U.S. District Judge William P. Johnson immediately rolled
the farmers and ranchers suit into the Navajo and New Mexico (and Utah) suits
(there was also a suit involving a small number of New Mexico citizens). Once
again the EPA sought
to have the reconsolidated lawsuit thrown out. But on February 28, 2019, Judge Johnson denied the EPA’s latest ploy.
As of this writing, while Utah has settled with the EPA and
withdrawn from the consolidated lawsuit, the other claimants – New Mexico,
Navajo Nation and two groups of citizens – are still awaiting compensation for
the damages caused by the EPA’s alleged negligence in 2015.
Five years have passed, and the Navajo in particular are
still hurting even as they also battle the health, economic and unemployment
consequences of the COVID 19 pandemic and forced shutdown of the tribe’s coal
mine and coal-fired power plant. Compounding these problems, restrictions on
travel and in-person interviews have slowed the ongoing discovery process such
that the projected trial date has been pushed back to fall 2021, further
postponing any compensation.
While the Utah settlement may provide some hope for a
pretrial resolution of the New Mexico and Navajo (and farmer and rancher)
cases, hard-line positions taken over the past five years by the EPA – and the
plaintiffs’ determination to finally win some meaningful relief – suggest that,
barring some pre-election-day “miracle,” this consolidated case could easily
drag on for years.
Duggan Flanakin is director of
policy research for the Committee For A Constructive Tomorrow (www.CFACT.org)
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