Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Gold King Mine

United States District Court, D. New Mexico

September 25, 2019

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.

         THIS 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").

         Background

         On August 3, 2018, approximately 300[1] 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.

         The EPA 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 system")).

         Defendant ER asks the Court to certify the following question for interlocutory appeal:

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 provides:

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).

         Controlling Question of Law

         The 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”).

         Substantial Ground for Difference of Opinion

         There is substantial ground for difference of opinion regarding the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.