United States District Court, D. New Mexico
IN RE GOLD KING MINE RELEASE IN SAN JUAN COUNTY, COLORADO, ON AUGUST 5, 2015
MEMORANDUM OPINION AND ORDER
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendants
Sunnyside Gold Corporation ("SGC"), Kinross Gold
U.S.A. Inc. ("KGUSA"), and Kinross Gold
Corporation's ("KGC") (“Mining
Defendants”) Combined Motion to Dismiss the Allen
Plaintiffs' Complaint and Supporting Memorandum, Doc.
115, filed November 1, 2018. For the reasons stated below,
the Motion is GRANTED in part and
DENIED in part.
after the Mining Defendants filed a motion to dismiss the
Amended Complaints of New Mexico, the Navajo Nation and Utah
(“Sovereign Plaintiffs”), the Allen Plaintiffs
filed a Complaint in Allen v. United States, No.
1:18-cv-00744-WJ-KK, asserting claims against the Mining
Defendants and others arising from the August 5, 2015,
release from the Gold King Mine. The Allen Plaintiffs are
members of the Navajo Nation, residents of New Mexico,
Colorado, Arizona and Utah, and “farm land or raise
livestock or both adjacent to the Animas River or San Juan
River and depend upon these rivers for irrigation of their
crops and livestock.” Allen Complaint ¶ 1, Doc. 1,
filed August 3, 2018. The Mining Defendants' motion now
before the Court seeks dismissal of the Allen Complaint.
Mining Defendants contend that the Court does not have
personal jurisdiction over the Mining Defendants because
"there has been no purposeful direction of any activity
toward New Mexico." The Mining Defendants state that the
"'purposeful or intentional action' undertaken
by SGC was performance of its Consent Decree obligations
[design and construction of the bulkheads under
Colorado's supervision years before the blowout], 'to
protect the waters of the State of Colorado.'" Doc.
115 at 12. The Mining Defendants also state that "beyond
KGUSA's acquisition of an indirect ownership of SGC in
2003, and KGC's indirect ownership of KGUSA, neither
KGUSA nor KGC undertook any action at all." Doc. 115 at
12. The Mining Defendants also argue that the "assertion
of personal jurisdiction over the Mining Defendants would be
unreasonable." Doc. 115 at 17.
Allen Plaintiffs have alleged sufficient facts to make a
prima facie showing of personal jurisdiction over
the Mining Defendants. The Allen Plaintiffs have alleged that
SGC installed bulkheads which caused wastewater to enter the
Gold King Mine, that KGC and KGUSA "controlled and
directed" SGC's activities, that the Mining
Defendants "had a duty to oversee, manage, maintain, and
regulate the Gold King Mine and Sunnyside Mine," that
the Mining Defendants "knew or should have known about
the presence of and potential for spreading of contamination
at Gold King Mine," and that the Mining Defendants
"recklessly disregarded the known potential impact on
downstream communities when they made decisions to bulkhead
the American Tunnel and Sunnyside Mine." Allen Complaint
¶¶ 309-314, 362, 370, 374.
determined that the Allen Plaintiffs have made a prima
facie showing that the Mining Defendants' actions,
although limited, establish minimum contacts with New Mexico,
the Court "must consider the quality of those minimum
contacts in light of several factors to determine whether the
district court's exercise of personal jurisdiction over
Defendants violates notions of 'fair play and substantial
In determining whether exercise of jurisdiction is so
unreasonable as to violate “fair play and substantial
justice, ” we consider: (1) the burden on the
defendant, (2) the forum state's interest in resolving
the dispute, (3) the plaintiff's interest in receiving
convenient and effective relief, (4) the interstate judicial
system's interest in obtaining the most efficient
resolution of controversies, and (5) the shared interest of
the several states in furthering fundamental substantive
social policies. Asahi, 480 U.S. at 113, 107 S.Ct.
1026. The strength of these factors sometimes serve to
establish the reasonableness of jurisdiction upon a lesser
showing of minimum contacts than would otherwise be required.
Burger King, 471 U.S. at 462, 105 S.Ct. 2174.
Conversely, the factors may be so weak that even though
minimum contacts are present, subjecting the defendant to
jurisdiction in that forum would offend due process.
OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149
F.3d 1086, 1095 (10th Cir. 1998).
Mining Defendants make the conclusory allegation, but do not
discuss why, "New Mexico's interest in resolving
this dispute is clearly less than Colorado's where the
Gold King Mine is located and the Blowout occurred."
Doc. 115 at 17. It appears that New Mexico's interest in
resolving this dispute is similar to Colorado's interest
because the same contaminants released to Colorado's
rivers were also transported to New Mexico's rivers.
Mining Defendants state that "[w]hile Plaintiffs may
have an interest in resolving this dispute, the most
convenient and effective relief available to them is in
Colorado. There is no reason why Colorado would be any less
inconvenient for the Plaintiffs than New Mexico would be for
the Mining Defendants." Doc. 115 at 17. After Defendant
Environmental Restoration filed a motion with the United
States Judicial Panel on Multidistrict Litigation to transfer
the Utah case to the District of New Mexico for coordinated
pretrial proceedings, "or such other District Court as
this Panel deems appropriate," the Mining Defendants
filed responses in support of transferring the cases to the
District of New Mexico stating that coordinating the pretrial
proceedings of the cases in the District of New Mexico would
conserve the resources of the parties and would promote the
convenience of the parties and witnesses. See
Doc's 1, 38, 40 in In re: Gold King Mine Release in
San Juan County, Colorado, on August 5, 2015, MDL No.
Mining Defendants also assert that the "fact that KGC is
a Canadian corporation must also be heavily considered."
Doc. 115 at 17 (quoting OMI Holdings, Inc. v. Royal Ins.
Co. of Canada, 149 F.3d 1086, 1096 (10th Cir. 1998)
("When the defendant is from another country, this
concern is heightened and 'great care and reserve should
be exercised' before personal jurisdiction is exercised
over the defendant")). KGC's burden of appearance in
the District of New Mexico is not onerous because KGC is
represented by the same law firm in Santa Fe that represents
KGUSA. Nor is the burden of appearing in the District of New
Mexico onerous for SGC, which is represented by a law firm in
Montana, or KGUSA, both of which have their principal places
of business in the adjacent State of Colorado.
the Mining Defendants argue that the "fourth and fifth
factors are reflected in the Clean Water Act and the required
application of the law of the forum state to the events in
question," and that "[a]s the Supreme Court found
in Oullette . . . the Clean Water Act reflects a
congressional decision and social policy that disputes
involving interstate waters must be decided according to the
law of the source state--Colorado--and in
Colorado." Doc. 115 at 18 (emphasis in
original). The Clean Water Act does not reflect a
congressional decision and social policy that disputes
involving interstate waters must be decided in the
source state. See International Paper Co. v.
Oullette, 479 U.S. 481, 499-500 (1987) (addressing issue
whether all state-law suits must also be brought in
source-state courts stating the Clean Water "Act
pre-empts laws, not courts. In the absence of statutory
authority to the contrary, the rule is settled that a
district court sitting in diversity is competent to apply the
law of a foreign State"). Furthermore, the statute
governing multidistrict litigation provides that when
"civil actions involving one or more common questions of
fact are pending in different districts, such actions may be
transferred to any district for coordinated or consolidated
pretrial proceedings." 28 U.S.C. § 1407(a).
Court concludes that its exercise of personal jurisdiction
over the Mining Defendants is not so unreasonable as to