This Blog Post was authored by Omar Khodor, a summer associate.

On June 23, 2021, the Ninth Circuit, in directing the lower court to dismiss a citizen’s suit claim under the Clean Water Act (“CWA”), held that the CWA did not abrogate tribal sovereign immunity. Deschutes River All. v. Portland Gen. Elec. Co., No. 18-35867, 2021 WL 2559477 (9th Cir. June 23, 2021). To abrogate a Tribe’s sovereign immunity, the Ninth Circuit explained that a statute must convey “perfect confidence” that Congress intended to abrogate tribal sovereign immunity. Id. at 14. It further found that the CWA does not unequivocally do so because Section 1365 – a section explicitly dealing with United States and governmental sovereign immunity – does not mention tribal sovereign immunity. Id. at 15-16. Rather, Section 1365 states that “any citizen may commence a civil action on his own behalf . . . against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution).” 33 U.S.C. § 1365. Although Section 1362(5) of the CWA goes on to define “any person” as a municipality (among other things), and Section 1362(4) further defines a “municipality” as including an “Indian Tribe or an authorized Indian Tribal organization,” the court determined that Congress had not clearly intended to abrogate tribal sovereign immunity because Tribes are not included in Section 1365. Deschutes River All., 2021 WL 2559477 at *15-16. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Energy, Federal Procedure, Ninth Circuit, Procedure, Sovereign Immunity, Tribal Lands

In an opinion and order released last week, the MDL court in In re Gold King Mine Release denied response contractors’ motions to dismiss. No. 1:18-md-02824-WJ, 2019 WL 1282997 (D. N.M. March 20, 2019) (slip opn.). The 2015 Gold King Mine release sent over three million gallons of contaminated wastewater into rivers in Colorado, New Mexico, and Utah. In the wake of the spill, the State of New Mexico, the State of Utah, the Navajo Nation, and multiple individual plaintiffs filed suit against the mine’s owner, the federal government, EPA, and EPA response contractors, Weston Solutions, Inc. and Environmental Restoration, LLCC (the “Response Contractors”). The court’s opinion, which allows the majority of plaintiffs’ CERCLA and tort claims to move forward, comes on the heels of a similar order denying the Federal Government’s motions to dismiss. See In re Gold King Mine Release, No. 1:18-md-02824-WJ, 2019 WL 999016 (D. N.M. Feb. 28, 2019) (slip opn.). Our blog post discussing that earlier opinion and order can be found here.    Read More »

Share | Email| Comments|  Topics: Arranger Liability, Case Update, CERCLA, Citizen Suit, Clean Water Act, Cleanup, Colorado, Consultant Liability, Contamination, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Response Action Contractors, Superfund, Trespass, Tribal Lands, Utah, Water

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. Read More »

Share | Email| Comments|  Topics: Citizen Suit, Clean Water Act, Cleanup, Colorado, Contamination, EPA, Federal Tort Claims Act, Negligence, New Mexico, Nuisance, Public Lands, RCRA, Remediation, Sovereign Immunity, Superfund, Trespass, Tribal Lands, Utah, Water