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. 118-cv-00744-WJ-KK
MEMORANDUM OPINION AND ORDER GRANTING PETITION FOR
CERTIFICATION OF INTERLOCUTORY APPEAL
WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Defendant
Environmental Restoration, LLC's ("ER")
Petition for Certification of Interlocutory Appeal, Doc. 226,
filed July 2, 2019 ("Petition").
August 3, 2018, approximately 300 members of the Navajo Nation
in New Mexico, Colorado, Arizona and Utah, initiated an
action in the District of New Mexico asserting claims arising
out of the August 5, 2015, release from the Gold King Mine.
See Complaint for Personal Injuries and Damages,
Doc. 1 in Allen v. United States, No.
1:18-cv-00744-WJ-KK. The Court ordered that the
Allen case be associated with this Multi-District
Litigation. See Doc. 51, filed August 7, 2018.
Contractor Defendants moved to dismiss the Allen
Complaint as barred by Colorado's statute of limitation
for tort claims. See Doc. 117, filed November 1,
2018 (also asserting other bases for dismissal). The Court
had previously concluded that Colorado substantive law
applies to this case. See Doc. 166 at 18, filed
March 20, 2019 (citing International Paper Co. v.
Ouellette, 479 U.S. 481 (1987)). The EPA Contractor
Defendants argued that because Colorado law applies to this
case, the Allen Plaintiffs' Complaint is barred
by Colorado's two-year statute of limitations, which is
shorter than New Mexico's statute of limitations. The
Court concluded that "[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 statue of limitations will not frustrate
the goals of the Clean Water Act, " and denied the EPA
Contractor Defendants' motion to dismiss the
Allen Plaintiffs' claims as barred by
Colorado's statute of limitations. Doc. 182 at 2-3, filed
May 31, 2019 (quoting International Paper Co. v.
Ouellette, 479 U.S. 481 (1987) ("we [the United
States Supreme Court] 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
ER asks the Court to certify the following question for
Where claims arising under one state's laws would be
time-barred under that same state's law, may a District
Court, exercising jurisdiction over parties pursuant to 28
U.S.C. § 1332 [Diversity of citizenship] and 28 U.S.C.
§ 1332 [Supplemental jurisdiction], apply a different
jurisdiction's statute of limitations in order to allow
the claims to proceed.
Petition at 5. The statute governing interlocutory decisions
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation, he shall so state in writing in such order. The
Court of Appeals which would have jurisdiction of an appeal
of such action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application is made to
it within ten days after the entry of the order:
Provided, however, That application for an appeal
hereunder shall not stay proceedings in the district court
unless the district judge or the Court of Appeals or a judge
thereof shall so order.
28 U.S.C. § 1292(b).
Question of Law
Court’s Order involves a controlling question of law.
See Paper, Allied-Industrial, Chemical And
Energy Workers Intern. Union v. Continental Carbon Co.,
428 F.3d 1285, 1291 (10th Cir. 2005) (“Interlocutory
appeals originate from the district court's order itself,
not the specific question certified by the district court or
the specific question framed by the appellant”) (citing
United States v. Stanley, 483 U.S. 669, 677 (1987)).
“[T]he correct test for determining if an issue is
appropriate for interlocutory review is (1) whether that
issue was raised in the certified order; and (2) whether the
issue can control the disposition of the order.”
Paper, Allied-Industrial, Chemical And Energy Workers
Intern. Union v. Continental Carbon Co., 428 F.3d 1285,
1291 (10th Cir. 2005). The issue of which statute of
limitations applies, Colorado's or New Mexico's, was
raised in the Court’s Order. See Doc. 182 at
2-3. Resolution of that issue on appeal could affect the
outcome of this case because, if the Court of Appeals for the
Tenth Circuit determines that Colorado's statute of
limitations applies, then the claims of the Allen
Plaintiffs would be barred. See 16 Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper § 3930
(3d ed. 2012) (“There is no doubt that a question is
‘controlling’ if its incorrect disposition would
require reversal of a final judgment”).
Ground for Difference of Opinion
is substantial ground for difference of opinion regarding the