Motion to dismiss filed in mine spill lawsuit

Noel Lyn Smith
The mouth of the Gold King Mine north of Silverton, Colo., is pictured on Aug. 10, 2015, several days after the mine was breached.

FARMINGTON — A defendant in the Navajo Nation's Gold King Mine spill lawsuit has filed a motion to dismiss its involvement in the case.

In the motion filed last week, the Sunnyside Gold Corp. claims the company had no involvement in the Aug. 5, 2015, spill that released more than 3 million gallons of toxic-laden wastewater into the Animas and San Juan rivers.

On Aug. 16, Navajo Nation President Russell Begaye announced the tribe had filed a lawsuit against Sunnyside, the U.S. Environmental Protection Agency, Environmental Restoration LLC, Harrison Western Corp., Gold King Mines Corp., Kinross Gold Corp., Kinross Gold USA Inc. and John Does 1-10.

Sunnyside, which is based in Silverton, Colo., owns and operates several mining properties, according to a company overview listed on the Bloomberg website.

Navajo Nation President Russell Begaye speaks on Aug. 16 during a press conference at Nizhoni Park in Shiprock to announce that the tribe had filed a lawsuit in response to the Gold King Mine spill.

The company states in its motion that claims against it must be dismissed for several reasons, including that the U.S. District Court of New Mexico lacks jurisdiction in the matter. The court lacks jurisdiction because only the alleged injury occurred in New Mexico, and none of the activities related to the mine happened in the state, according to the motion.

"In this case, there is no suggestion that Sunnyside's activities were ever directed at New Mexico. All of Sunnyside's conduct and activities, everything it did or did not do relevant to this case, occurred in Colorado. Nothing Sunnyside did was in or aimed at New Mexico," the motion states.

Sunnyside argues the state of Colorado must be a party to the lawsuit because the mine and associated work was done within the state.

According to the motion, the company claims bulkheads installed at the mine were completed through specific directives issued by the state of Colorado and by a consent decree approved by a Colorado district court judge in May 1996.

Any fault associated with the installation of bulkheads must include Colorado, the motion states.

Another reason the motion asks to dismiss Sunnyside is due to a section of the Comprehensive Environmental Response, Compensation and Liability Act, which established the Superfund program, that deprives the court's jurisdiction over the tribe's abatement claims.

On Sept. 9, the EPA designated the Bonita Peak Mining District, where the Gold King Mine is located, a Superfund site.

Because the area has received the Superfund designation, any abatement activities would be determined by the EPA, and the tribe is not entitled to punitive damages from Sunnyside, according to the motion.

Attorneys for the Navajo Nation could not be reached for comment on Friday. But the lawyers submitted a request on Thursday to extend the deadline to respond to Sunnyside's motion to dismiss.

A decision has not been issued for either request, according to court records.

Noel Lyn Smith covers the Navajo Nation for The Daily Times. She can be reached at 505-564-4636.