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 GRANTING ALLEN
PLAINTIFFS' MOTION FOR LEAVE TO AMEND COMPLAINT
WILLIAM P. JOHNSON, CHIEF UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on the Allen
Plaintiffs' Motion for Leave to Amend Complaint, Doc.
254, filed August 2, 2019 ("Motion to Amend").
Allen Plaintiffs seek to amend their Complaint to:
(i) add seven additional plaintiffs who are similarly
situated to the original Allen Plaintiffs; (ii)
exclude Defendants EPA, Salem Minerals, Inc., and San Juan
Corp., who were dismissed as defendants by stipulation of the
Allen Plaintiffs; and (iii) add two new tort claims
for private nuisance and trespass.
Rule of Civil Procedure 15 instructs that leave to amend a
complaint should be freely granted “when justice so
requires.” Fed.R.Civ.P. 15(a)(2). "A court may
deny leave, however, on account of “undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, [or] futility of [the]
amendment.” Haasan v. AIG Property Casualty
Co., 935 F.3d 1092, 1101-1102 (10th Cir. 2019) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
Defendants opposing the Motion to Amend assert the motion is
untimely and amendment to add trespass and nuisance claims
would be futile because: (i) the Allen Plaintiffs do
not allege the specific legal possessory interest in their
property; (ii) the Allen Plaintiffs do not allege
physical intrusion or how their property interest was
affected; and (iii) the Allen Plaintiffs do not
allege that Defendants intentionally and unreasonably
interfered with Plaintiffs' use of their property.
See Defendants Kinross Gold U.S.A., Inc. and Kinross
Gold Corp.'s Response, Doc. 272, filed August 16, 2019;
Defendant Sunnyside Gold Corp.'s Response, Doc. 273,
filed August 16, 2019; Contractor Defendants' Response,
Doc. 274, filed August 16, 2019.
Motion to Amend is not untimely. The Parties filed a Joint
Status Report and Provisional Discovery Plan which stated the
"Allen Plaintiffs should be allowed until September 30,
2019 to move to amend the pleadings." Doc. 244 at 3,
filed July 30, 2019. The Special Master has adopted the Joint
Status Report and Provisional Discovery Plan. See
Order, Doc. 303, filed September 11, 2019. The Allen
Plaintiffs filed their Motion to Amend on August 2, 2019,
well before the September 30, 2019, deadline.
is not futile. “A proposed amendment is futile if the
complaint, as amended, would be subject to dismissal.”
DeHaan v. United States, 3 Fed.Appx. 729, 731 (10th
[T]o withstand a motion to dismiss, a complaint must contain
enough allegations of fact to state a claim to relief that is
plausible on its face . . . a judge ruling on a motion to
dismiss must accept all allegations as true and may not
dismiss on the ground that it appears unlikely the
allegations can be proven. “[A] well-pleaded complaint
may proceed even if it strikes a savvy judge that actual
proof of those facts is improbable, and ‘that a
recovery is very remote and unlikely.' ”
Id. at 1965 (quoting Scheuer v. Rhodes, 416
U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Thus,
“plausible” cannot mean “likely to be
true.” Rather, “plausibility” in this
context must refer to the scope of the allegations in a
complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs
“have not nudged their claims across the line from
conceivable to plausible.” Id. at 1974. The
allegations must be enough that, if assumed to be true, the
plaintiff plausibly (not just speculatively) has a claim for
Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008). The proposed amended complaint states plausible
trespass and nuisance claims because it alleges: (i)
Plaintiffs own or have other legal property rights and
interests in and on land affected by the Gold King Mine
spill;" (ii) "Defendants invaded or otherwise
caused other Defendants to invade or intrude upon the
property rights of the Plaintiffs without permission. Some of
the contaminants still remain on the Plaintiffs'
property;" (iii) "This invasion by the Defendants .
. . caused injury to the Plaintiffs' property rights . .
. including destruction of Plaintiffs' crops on their
property;" and (iv) "The Gold King Mine spill also
substantially and unreasonably interfered with the
Plaintiffs' use and enjoyment of their land and property
by disturbing Plaintiffs' comfort, convenience and peace
of mind . . . with respect to Plaintiffs' continued
ability to use their land for grazing and agriculture . . .
caused distress and anxiety from the public stigma directed
at Plaintiffs' land, harvest and livestock that resulted
from the Gold King Mine spill." Doc. 254-1 at 115 ¶
386, 116 ¶¶ 392-393, 117-118 ¶¶ 397, 393.
Court grants the Motion to Amend because the Motion is timely
and amendment is not futile.
IS ORDERED that the Allen Plaintiffs' Motion for
Leave to Amend Complaint, Doc. 254, filed August 2, 2019, is
 "The elements for the tort of
trespass are a physical intrusion upon the property of
another without the proper permission from the person legally
entitled to possession of that real estate." Public
Service Co. of Colorado v. Van Wyk,27 ...