Legal experts say they need more time to determine mine spill fallout

Steve Garrison The Daily Times
The Daily Times

SHIPROCK — Navajo Nation President Russell Begaye told a room filled with Shiprock ranchers and farmers Thursday that a Navajo healer completed a traditional ceremony last week at the Gold King Mine to restore balance to the polluted waters that continue to leak from the site.

However, the extent of the economic damage has yet to be fully assessed.

The U.S. Environmental Protection Agency has taken responsibility for causing the Aug. 5 Gold King Mine blowout north of Silverton, Colo., that released more than 3 million gallons of acidic water tainted with heavy metals into the Animas River.

The EPA is now asking impacted residents and businesses to submit claims for damages and it opened a recovery center last week in Durango, Colo., to help with the claims process.

However, the agency has not yet offered such services in Farmington or Shiprock and local pro bono legal agencies said they are limited in what services they can provide.

Brooke Hansen, a spokeswoman for the EPA, said Thursday she was not certain whether a recovery center would be opened in Farmington or Shiprock, but directed residents in the area to submit their claims through the EPA's website.

She said the agency will devise a plan to assist residents who may not have Internet access.

"There will be more to come," she said. "We have been focusing on the cleanup, and now we are starting to focus on the claims process and how to help with that."

David Cowen, president of the San Juan County Bar Association, said in a statement that the association is aware residents have legal questions about the spill, but it is still too early to discuss possible remedies.

DNA People's Legal Services Executive Director T.J. Holgate agreed that more information is needed about damages before action can be taken.

"I have alerted my staff, as executive director, that this is going on and appointed a lawyer to look into what services, either brief or on a long-term basis, we could provide," Holgate said.

During Thursday's public meeting in Shiprock, Navajo Nation Attorney General Ethel Branch directed tribal residents with questions to contact DNA People's Legal Services, which has offices throughout the Navajo Nation and in Farmington.

Individuals who suffered property or personal damage as a result of the spill have up to two years to file a claim, according to the EPA's website.

Cowen said the Eleventh Judicial District Court will be host the annual San Juan County Legal Fair on Sept. 25 at the Aztec district courthouse, 103 S. Oliver Drive.

Cowen said there are no plans currently to address the mine spill directly at the fair, but volunteer attorneys will answer general questions about the issue.

New Mexico Attorney General Hector Balderas said last week that he believed proper legal resources needed to be deployed to rural areas in San Juan County and the Navajo Nation, but declined to answer questions Thursday about where those resources would come from.

"Our office is strongly focused on oversight and accountability as we get to the bottom of what caused this tragic accident, and we will ensure that the EPA and any other responsible party holds themselves accountable to New Mexicans as we work to recover," Balderas said in a statement. "My office stands ready to support local agencies and legal service providers in any way we can."

Jason Eley, an attorney with the Tucker, Burns, Yoder and Hatfield Law Firm in Farmington, said he is assisting several clients in the Durango area as they file claims for damages against the EPA.

He agreed with Cowen and Holgate that it is difficult right now to determine the full extent of the spill's damage, but he is advising clients on claims related to property value depreciation, loss of business and costs related to delayed water service.

"At this point, it's filing claims and seeking a settlement," Eley said. "If that doesn't work within six months, then you file a lawsuit."

Some Navajo Nation officials, including President Begaye and Branch, have warned tribal residents to avoid using the EPA's Standard Form No. 95 to seek redress from the EPA, claiming the form contains "offending language" and individuals who sign the form will waive future claims against the agency. In a press release, the EPA has said that is not true.

Efforts to reach Branch for comment were unsuccessful.

Eley disagreed with Branch's assessment, which was included in an Aug. 12 directive from President Begaye to cease distributing the EPA form. Eley said federal law requires residents and business owners to attempt to seek remediation through the claims process before filing a lawsuit.

"(Filing a claim) is just getting the process started," Eley said. "If there is no agreement on damages, you are not bound to take what the government gives you."

William Douglas Lee, a Shiprock pastor and farmer, was one of dozens of farmers and ranchers who attended a public hearing Thursday in Shiprock about the San Juan River contamination.

He said his crops are dying because he has not been able to use river water for irrigation. But, he said, he has not given much thought yet to filing a claim against the EPA.

"There is a two-year timetable, and Navajo leaders have cautioned us against (filing)," Lee said. "We will see."

Frankie Johnson raises black Angus cows in Shiprock, and, this year, he planted corn.

He said he has not spoken to an attorney, but he will probably seek damages from the EPA for the "impounding" of his crops.

"There is no water," he said. "I gotta use tap water from my house."

He said the problem right now for all farmers is the lack of water, and that needs to be addressed.

"So far, the EPA? I don't hear a word from them," Johnson said.

Steve Garrison covers crime and courts for The Daily Times. He can be reached at 505-564-4644 and Follow him on Twitter @SteveGarrisonDT on Twitter.