United States District Court, D. New Mexico
IN RE GOLD KING MINE RELEASE IN SAN JUAN COUNTY, COLORADO, ON AUGUST 5, 2015 This Document Relates to No. 1:18-cv-00744-WJ-KK
MEMORANDUM OPINION AND ORDER
WILLIAM P. JOHNSON CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on the EPA Contractor
Defendants' Motion to Dismiss the Allen
Plaintiffs' Complaint and Motion to Strike, Doc. 117,
filed November 1, 2018. For the reasons stated below, the
Motion is GRANTED in part and DENIED
after the EPA Contractor Defendants filed a motion to dismiss
the claims 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 EPA
Contractor Defendants and others arising from the August 5,
2015, release from the Gold King Mine. The EPA Contractor
Defendants' motion now before the Court seeks dismissal
of the Allen Complaint.
Contractor Defendants assert that the Allen Plaintiffs'
claims are barred by Colorado's two-year statute of
limitations. See Doc. 117 at 5. The EPA Contractor
Defendants rely on two United States Supreme Court cases that
held “when a court considers a state-law claim
concerning interstate water pollution that is subject to the
[Clean Water Act], the court must apply the law of the State
in which the point source is located.”
International Paper Co. v. Ouellette, 479 U.S. 481,
487 (1987) (Vermont landowners brought suit against operator
of New York pulp and paper mill under Vermont common law of
nuisance); Arkansas v. Oklahoma, 503 U.S. 91, 100
(1992) (restating the holding in Ouellette as
“the Clean Water Act taken ‘as a whole, its
purposes and its history' pre-empted an action based on
the law of the affected State and that the only state law
applicable to an interstate discharge is ‘the law of
the State in which the point source is located'”).
The Court has concluded that Colorado substantive law applies
in this case, see Doc. 166 at 18, filed March 20,
2019 (citing International Paper Co. v. Ouellette).
Allen Plaintiffs are asserting tort claims against Defendants
and assert that they "filed their complaint within the
New Mexico statute of limitations and are not barred."
Doc. 128 at 6. Generally, the statute of limitations of the
forum state applies to claims in federal court. See
Restatement (Second) Conflict of Laws § 142 ("In
general, unless the exceptional circumstances of the case
make such a result unreasonable . . . The forum will apply
its own statute of limitations unless: (1) maintenance of the
claim would serve no substantial interest of the forum; and
(b) the claim would be barred under the statute of
limitations of a state having a more significant relationship
to the parties and the occurrence"); Sun Oil Co. v.
Wortman, 486 U.S. 717, 722 (1988) (stating the United
States Supreme Court "has long and repeatedly held that
the Constitution does not bar application of the forum
State's statute of limitations to claims that in their
substance are and must be governed by the law of a different
State"); Myers v. Koopman, 738 F.3d 1190, 1194
n.2 (10th Cir. 2013) ("Claims under § 1983 are
governed by the forum state's statute of
limitations", citing Wallace v. Kato, 549 U.S.
384, 387 (2007)); Elm Ridge Exploration Co., LLC v.
Engle, 721 F.3d 1199, 1210 (10th Cir. 2013) ("A
federal court sitting in diversity applies the substantive
law of the state where it is located, including the
state's statutes of limitations"). While the Clean
Water Act preempts the application of New Mexico tort law,
the Clean Water Act does not preempt the application of New
Mexico's statute of limitations because the application
of New Mexico's statute of limitations will not frustrate
the goals of the Clean Water Act. See
International Paper Co. v. Ouellette, 479 U.S. 481,
497-499 n.20 (1987) ("we note that the preemptive scope
of the CWA necessarily includes all laws that are
inconsistent with the 'full purposes and objectives of
Congress' . . . the application of affected-state law
would frustrate the carefully prescribed CWA regulatory
system"). The Court therefore denies the EPA Contractor
Defendants' motion to dismiss the Allen Plaintiffs'
claims as barred by Colorado's statute of limitations.
Allen Plaintiffs Seek to Recover Same Damages as the Navajo
Contractor Defendants move to dismiss the Allen Complaint
"because the Allen Plaintiffs seek to recover the same
damages as the Navajo Nation," stating the
"interests of the Allen Plaintiffs are already being
protected by the Navajo Nation, parens patriae, and
the 'compensatory and consequential damages' . . .
sought by the Allen [P]laintiffs, are duplicative of the
'compensatory, consequential, and punitive damages,'
. . . sought by the Navajo Nation." Doc. 117 at 11-12.
Court denies the EPA Contractor Defendants' motion to
dismiss the Allen Complaint based on potential duplicative
claims by the Allen Plaintiffs. "The Supreme Court has
recognized the right of a State to sue as parens
patriae to prevent or repair harm to its quasi-sovereign
interest." Satsky v. Paramount Communications,
Inc., 7 F.3d 1464, 1469 (10th Cir. 1993). "It is
equally clear, however, that a state may not sue to assert
the rights of private individuals." Satsky v.
Paramount Communications, Inc., 7 F.3d at 1469. The
Allen Plaintiffs have asserted claims of "personal
injury and property damages arising out of the release."
Complaint, Doc. 1, filed August 3, 2018, in Allen v.
United States, No. 1:18-cv-00744-WJ-KK (D.N.M.). Because
Rule 8 only requires "a short and plain statement of the
claim showing that the pleader is entitled to relief,"
and because there has been no discovery, the Court cannot at
this time determine the extent, if any, that the claims of
the Allen Plaintiffs and the Navajo Nation are duplicative.
Contractor Defendants move the Court to dismiss the Allen
Plaintiffs' state law claims because CERCLA Section
113(h), 42 U.S.C. 9613(h), bars any interference with a
CERCLA response action and the Allen Plaintiffs'
"claims for monetary damages would interfere with
EPA's ongoing remedial efforts at the BPMD site."
See Doc. 117 at 19-20; see also 42 U.S.C.
§ 9613(h) (“No Federal court shall have
jurisdiction under Federal law . . . or under State law . . .
to review any challenges to removal or remedial action
selected under section 9604 of this title . . . except”
in certain actions).
Court denies EPA Contractor Defendants' motion to dismiss
pursuant to CERCLA Section 113(h) because the Court has
previously denied the Federal Defendants' and the Mining
Defendants' motions to dismiss claims pursuant to CERCLA
Section 113(h) to allow for jurisdictional discovery
regarding the issue of whether abatement in New Mexico and/or
Utah would interfere with EPA's remedial action.
See Mem. Op. and Order at 10-15, Doc. 164, filed
February 28, 2019; Mem. Op. and Order at 9-11, Doc. 168,
filed March 26, 2019.
Contractor Defendants assert that they "are shielded
from state tort law liability under the government contractor
defense" and incorporate by reference their arguments in
their earlier motion to dismiss the claims brought by the
State of New Mexico, the Navajo Nation, the State of Utah and
the McDaniels Plaintiffs. Doc. 117 at 22. The Court denied
the EPA Contractor Defendants' earlier motion to dismiss
based on the government contractor defense "because the
defense does not ...