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MDL Court Finds Federal Government Not Entitled to Sovereign Immunity for Gold King Mine Release

In an opinion and order released last week, the United States District Court for the District of New Mexico denied the federal government’s motions to dismiss claims relating to the 2015 Gold King Mine wastewater spill. In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 999016 (D. N.M. Feb. 28, 2019) (slip opn.). The district court was not convinced by the government’s argument that it was entitled to sovereign immunity and that the plaintiffs’ complaints were inadequate. It denied the motions and allowed all but one of the plaintiffs’ claims to proceed to discovery.

This case arises out of the 2015 Gold King Mine wastewater spill. The spill, which was triggered by EPA employees working at the mine, sent more than three million gallons of contaminated wastewater into rivers in Colorado, New Mexico, and Utah. In the aftermath, the State of Utah, the State of New Mexico, the Navajo Nation, individual members of the Navajo Nation, and residents of four states filed suit against the United States and EPA (the “Federal Defendants”), among others, asserting claims for cost recovery, declaratory judgment, and injunctive relief under CERCLA, the Federal Tort Claims Act, and other federal environmental statutes. Last year the Judicial Panel on Multidistrict Litigation consolidated the cases for pretrial proceedings in the District of New Mexico. In re Gold King Mine Release, MDL No. 2824 (J.P.M.L. Apr. 4, 2018). The Federal Defendants then filed motions to dismiss.

Claims for Cost Recovery and Declaratory Judgment Under CERCLA

New Mexico, Utah, and the Navajo Nation brought CERCLA claims to recover the costs that they incurred responding to the spill and to receive a declaratory judgment that EPA is liable for future response costs. In re Gold King Mine Release, 2019 WL 999016 at *1. The Federal Defendants moved to dismiss those claims, arguing that EPA retains sovereign immunity when “responding to a release or threatened release of a hazardous substance caused by others,” and in the alternative, that Plaintiffs failed to state a claim for CERCLA relief because they “have not adequately alleged that EPA is liable as an ‘operator,’ ‘arranger,’ or ‘transporter.’” Id.

The district court was not swayed by either argument. For sovereign immunity, the court noted that “CERCLA waives the federal government’s sovereign immunity,” unless a response action is the government’s sole connection to the site. Id. But that exception does not apply, and therefore, does not preclude liability, when the government has acted negligently. Id. at *2. Because the plaintiffs’ CERCLA claims were based on the government’s alleged negligence, the Federal Defendants were not entitled to sovereign immunity. Id. As for the second argument, the court concluded that the plaintiffs had sufficiently alleged that EPA’s actions made them liable under CERCLA as an “operator,” an “arranger,” and a “transporter.” Id. at *2–4.

Negligence, Nuisance, and Trespass Claims Under the FTCA

In addition, the sovereign and individual plaintiffs brought common law tort claims, alleging that the United States is liable under theories of negligence, nuisance, and trespass. Id. at *4. The United States again claimed that it is entitled to sovereign immunity from all of plaintiffs’ tort claims. In the Federal Tort Claims Act (“FTCA”) the United States waived sovereign immunity for claims that are based on the negligent acts of government employees acting within the scope of their employment. Id. But that waiver does not apply if the government employee was performing a discretionary function. Id. at *4–5. The court was not convinced that the discretionary function applies in this case. Id. at *5. It found that the plaintiffs had alleged that “EPA failed to adequately train workers on site to deal with ‘expected emergencies’” in violation of an explicit regulation requiring such training. Id. In light of that allegation, the court denied the motion to dismiss and allowed discovery on whether the discretionary function exception applies. Id. at *5, *8.

The court did however dismiss the individual plaintiffs’ FTCA claims against EPA. Id. at *8. As the plaintiffs conceded, the only appropriate defendant under the FTCA is the United States, not a federal agency. Id.

Claims for Injunctive Relief Under the CWA and RCRA

New Mexico and Utah also sought injunctive relief against EPA under a citizen suit provision in the Clean Water Act, which authorizes the “Governor of a State” to file suit against EPA for failing to enforce water quality standards in another state, the violation of which causes “an adverse effect on the public health or welfare in his State” or “a violation of any water quality requirement in his State.” Id. at *5–6 quoting 33 U.S.C. § 1365(h). Utah sought injunctive relief under that provision and under a similar provision in RCRA. Id. at *6.

EPA argued that the States’ statutory claims should be dismissed because CERCLA and RCRA limit the court’s jurisdiction when EPA has initiated remedial or removal actions under CERCLA. Id. The court noted that EPA had previously represented that its jurisdictional argument would raise only a facial attack. Id. at *6–7. Despite that representation, the agency’s motion for dismissal presented a factual, not facial attack, which required discovery. Id. at *7. Because discovery on the issue was necessary, the court denied the motion, but stated that EPA could raise the jurisdictional challenge again in a motion for summary judgment if discovery showed that the court lacked jurisdiction over the CWA and RCRA claims. Id. at *7–8.

Although the district court denied the Federal Defendants’ motions as to all but one of the plaintiffs’ claims, its order allows the Federal Defendants to raise many of their arguments at a later stage. Even with that possibility, though, the opinion suggests that the court will take a hard look at the Federal Government’s attempts to evade claims arising from the Gold King Mine spill. In the mean time, the parties move forward with discovery.