EPA says it won't pay $1.2B in mine spill claims

Federal, tribal, state and local officials joined together to decry the announcement, saying the EPA is shirking its responsibilities to New Mexicans and members of the Navajo Nation

Magdalena Wegrzyn, Leigh Black Irvin, Joshua Kellogg, and Noel Lyn Smith
Farmington Daily Times
At right, Joe Ben Jr., a former Shiprock Chapter Farm Board member who served during the Gold King Mine spill, talks on Friday about his dissatisfaction with the U.S. Environmental Protection Agency after it announced it will not pay claims filed against it in response to the spill. Ben speaks at the farm of Earl Yazzie, pictured at left, in Shiprock.
  • The EPA says the Federal Tort Claims Act does not allow the federal agency to pay claims that result from "discretionary” government actions.
  • An EPA agency official said paying the claims would discourage cleanup efforts — such as the one underway at the Gold King Mine when it was breached — in the future.
  • The EPA says 73 claims worth about $1.2 billion were filed under the Federal Tort Claims Act after the mine spill. That includes about $154 million in tort claims that are part of a lawsuit filed by the state of New Mexico.
  • Tribal, state and local officials expressed outrage at the EPA's decision, and federal lawmakers say they plan to introduce legislation to force the agency to pay the claims.

FARMINGTON — Federal lawmakers, tribal leaders and state and local officials presented a rare unified front today as they vehemently denounced the U.S. Environmental Protection Agency's announcement that it will not pay more than $1.2 billion in claims filed against it in response to the Gold King Mine spill.

The EPA said the Federal Tort Claims Act prevents the agency from paying claims that result from "discretionary" government actions. Congress passed the law to allow government agencies — and in this case, contractors working on their behalf — to act "without the fear of paying damages in the event something went wrong while taking the action," according to a press release from the EPA.

Three federal lawmakers representing New Mexico denounced the news in a joint statement, calling the agency's reasoning a "shameful legal interpretation of liability." Meanwhile, Navajo Nation officials questioned who would take responsibility for reimbursing tribal members hurt by the spill, which on Aug. 5, 2015, released more than three million gallons of toxic wastewater into a tributary that feeds the Animas River, which flows into the San Juan River, ultimately emptying into Lake Powell.

The EPA said the work contractors conducted at the mine near Silverton, Colo., is considered a "discretionary function" under the law.

Sens. Tom Udall and Martin Heinrich, New Mexico Democrats, and Rep. Ben Ray Luján, D-N.M., issued a statement saying they would continue pushing for legislation to hold the EPA accountable. They also said it would be up to the courts to determine whether the EPA's defense is legitimate.

At left, the Animas River flows near its confluence with the San Juan River in Farmington on Aug. 8, 2015, shortly after the Gold Kine Mine near Silverton, Colo., was breached.

Heinrich said in a phone interview that he intends to introduce legislation to ensure the EPA pays claims that have already been filed, as well as future claims.

"I’m going to speak to all of the senators from Colorado and Arizona, and we’re going to introduce legislation to do this right," he said.

An EPA agency official said paying the claims would discourage cleanup efforts — such as the one being conducted at the Gold King Mine when it was breached — in the future.

Heinrich called that an "excuse" by the EPA for not paying the claims. The senator said it's the agency's job to perform mine cleanup efforts.

"That’s what they do. They clean things. It’s what we budget them to do," Heinrich said.

Navajo Nation President Russel Begaye speaks during an interview on Friday at the Phil L. Thomas Performing Arts Center in Shiprock about an announcement by the U.S. Environmental Protection Agency that it will not pay claims filed against it in response to the Gold King Mine spill.

Navajo Nation President Russell Begaye said the tribe will continue pursuing its lawsuit against the EPA and several other entities. He said the tribe plans to work with president-elect Donald J. Trump's administration to address claims tied to the spill.

"It doesn't stop here," Begaye said shortly after attending an inauguration ceremony in Shiprock for recently elected Northern Agency chapter officials. "This is one step, and we will continue taking the next step and if we have to, we'll take it all the way to the Supreme Court."

Navajo Nation Council Speaker LoRenzo Bates said his attention immediately turned to the affected farmers after he learned the news. He added it was "extremely unfortunate" the EPA determined the claims did not meet the legal merits.

"Who out there is going to do the right thing to compensate these farmers for the loss that they have taken and the loss they continue to take?" Bates said.

An EPA official said 73 claims related to the mine spill were filed under the Federal Tort Claims Act. Four were from governmental agencies and the rest were from individuals and companies.

The claims totaled more than $1.2 billion. However, the agency official said none of the claims were evaluated for their legitimacy and some were vague and for "extraordinarily" large sums.

Those who filed claims have six months from the date of denial to challenge the decision in U.S. District Court.

Navajo Nation Council Speaker LoRenzo Bates, left, and Pete Ken Atcitty, his chief of staff, takes a phone call on Friday outside the Phil L. Thomas Performing Arts Center about the news that the U.S. Environmental Protection Agency will not pay more than $1.2  billion in claims filed against the federal agency in response to the Gold King Mine spill.

Joe Ben Jr. served as the Shiprock Chapter's farm board member when the spill occurred. Ben, a farmer himself, said he did not file a claim but knows several other farmers who submitted claims for lost crops and revenue.

"I was not surprised by the EPA's resolve to this, but I'm surprised and disappointed with our Diné leadership," he said.

He said that in the days after the spill, farmers united to address their concerns and develop solutions. But, he claims, that changed when tribal officials took the lead. He said he thinks compensation would have come if the farming community remained united.

Shiprock farmer Earl Yazzie said he filed a claim — he couldn't recall if it was under the Federal Tort Claims Act — through a law firm that handled the process. That claim, he said, was already denied, so he wasn't surprised by the EPA's announcement.

"I already knew the government was not going to help us. …They think we're doing OK on the rez, but we're not," Yazzie said.

But collecting compensation doesn't weigh heavily on Yazzie. Instead, the farmer said he's more concerned about whether to plant crops this spring and if he'll irrigate with water from the San Juan River.

Shiprock farmer Earl Yazzie talks on Friday at his home in Shiprock about the U.S. Environmental Protection Agency's announcement that it will not pay claims related to the Gold King Mine spill that were filed under the Federal Tort Claims Act.

Included in the $1.2 billion is about $154 million in tort claims that are part of a lawsuit filed by the state of New Mexico, according to the EPA official. She said the EPA's defense will be used in court to deny payment of those claims.

"New Mexico’s children, families and economy have already been devastated by the EPA’s horrific actions, and now the EPA is revictimizing our state and the Navajo Nation with its reckless refusal to take full responsibility for the toxic Gold King Mine spill," said New Mexico Attorney General Hector Balderas in an emailed statement. "Our families and farmers rely on this water, and I will continue to aggressively pursue litigation to obtain justice for our culturally unique population and fragile economy.”

The EPA official acknowledged the announcement was slow in coming, adding "we spent a lot of time trying to see if there was any other way to address this because this is obviously an answer that leaves a lot of people unhappy who have been hurt."


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Gov. Susana Martinez called the EPA's announcement "yet another insult by the Obama EPA."

"I can guarantee you that if a private company had caused this massive environmental disaster, the EPA would have gone all out to hold them accountable," she said in a statement provided to The Daily Times. "But when the federal government dumps millions of gallons of toxic sludge into our rivers, they shirk their responsibility and leave it up to the states to mop up the mess they created. This is unacceptable and just another example as to why the people have lost faith in the federal government."

San Juan County Chief Executive Officer Kim Carpenter said he’s outraged by the decision and called it "utterly ridiculous" and "ludicrous."

"I hope this will send a message to Trump and the White House," Carpenter said. “I want them to come out and talk to people and see what we went through. This is just another reason why the American people are fed up with the federal government."

Carpenter said the county received $73,000 from the EPA about one year ago as compensation for the spill.

Farmington City Manager Rob Mayes, in a written statement, said the city received $371,000 as reimbursement from the EPA for emergency response expenses.

"I am very concerned on behalf of those citizens negatively affected," he said, "and hope that ultimately the EPA will be held accountable as they assured us they would be.