`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
`
`In re: Gold King Mine Release in San Juan
`County, Colorado on August 5, 2015
`
`No. 1:18-md-02824-WJ
`
`This Document Relates to:
`
`No. 1:16-cv-00465-WJ-LF
`
`No. 1:16-cv-00931-WJ-LF
`
`______________________________________________________________________________
`
`CONSENT DECREE BETWEEN THE STATE OF NEW MEXICO, THE NAVAJO
`NATION, SUNNYSIDE GOLD CORPORATION, KINROSS GOLD U.S.A., INC., AND
`KINROSS GOLD CORPORATION
`______________________________________________________________________________
`
`
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`Case 1:16-cv-00931-WJ-LF Document 563 Filed 07/30/21 Page 2 of 21
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`TABLE OF
`CONTENTS
`
`I.
`II.
`III.
`IV.
`V.
`VI.
`VII.
`
`BACKGROUND ................................................................................................................ 1
`JURISDICTION ................................................................................................................. 3
`PARTIES BOUND ............................................................................................................. 3
`DEFINITIONS .................................................................................................................... 3
`STATEMENT OF PURPOSE ............................................................................................ 7
`PAYMENTS ....................................................................................................................... 7
`COVENANTS BY NEW MEXICO AND ACKNOWLEDGEMENT BY NAVAJO
`NATION ............................................................................................................................. 8
`VIII. COVENANTS BY MINING DEFENDANTS ................................................................... 9
`IX.
`RESERVATIONS OF RIGHTS BY PARTIES ................................................................. 9
`X.
`EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION .................................. 10
`XI.
`NOTICES .......................................................................................................................... 12
`XII.
`RETENTION OF JURISDICTION .................................................................................. 14
`XIII.
`INTEGRATION ............................................................................................................... 14
`XIV. LODGING AND OPPORTUNITY FOR PUBLIC COMMENT .................................... 14
`XV.
`SIGNATORIES ................................................................................................................ 15
`XVI. FINAL JUDGMENT ........................................................................................................ 15
`
`
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`This Consent Decree is made and entered into by and between the State of
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`New Mexico, and the New Mexico Environment Department (collectively “NM Plaintiffs”),
`
`and the New Mexico Office of the Natural Resources Trustee (“ONRT”) (NM Plaintiffs and
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`ONRT collectively “New Mexico”), and the Navajo Nation (“Navajo Nation” as further
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`defined below), on the one hand, and Sunnyside Gold Corporation (“SGC”), Kinross Gold
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`Corporation (“KGC”), and Kinross Gold U.S.A., Inc. (“KGUSA”), on the other hand
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`(collectively, the “Mining Defendants).
`
`BACKGROUND
`I.
`NM Plaintiffs have made claims under the Comprehensive Environmental
`
`A.
`
`Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 ("CERCLA") against
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`the Mining Defendants in the following litigation: In re Gold King Mine Release in San Juan
`
`County, Colorado on August 5, 2015 (1:18-md-02824 (D.N.M.)) and State of New Mexico v.
`
`USEPA, et al. (1:16-cv-00465 (D.N.M.)) (“NM Litigation”) consolidated with 1:16-cv-00931
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`(D.N.M.), which litigation arose from the release that occurred on August 5, 2015 at the Gold
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`King Mine (“Gold King Blowout” as further defined below).
`
`B.
`
`Navajo Nation has similarly made claims under CERCLA against the
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`Mining Defendants in the following litigation: In re Gold King Mine Release in San Juan
`
`County, Colorado on August 5, 2015 (1:18-md-02824 (D.N.M.)) and Navajo Nation v. USEPA,
`
`et al. (1:16-cv-00931 (D.N.M.)) (“NN Litigation”) consolidated with 1:16-cv-00465 (D.N.M.),
`
`which litigation also arose from the Gold King Blowout (such litigation, together with the NM
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`Litigation, the “Litigation”)
`
`C.
`
`The above-described CERCLA claims by NM Plaintiffs and Navajo Nation are
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`under Sections 107(a) and 113(g)(2) of CERCLA, 42 U.S.C. §§ 9607(a), and 9613(g)(2), in
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`1
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`connection with the release or threatened release of hazardous substances as alleged in the
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`Litigation.
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`D.
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`SGC has made counterclaims under CERCLA for cost recovery and contribution
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`against NM Plaintiffs in the NM Litigation.
`
`E.
`
`New Mexico and the Mining Defendants have entered into a Settlement
`
`Agreement dated January 7, 2021 with respect to the NM Litigation (“NM Settlement
`
`Agreement”), and such NM Settlement Agreement provides that New Mexico and the
`
`Mining Defendants will enter into a consent decree with respect to those CERCLA
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`Response Cost and Natural Resource Damages claims resolved by the NM Settlement
`
`Agreement, and that the Navajo Nation will also be a party to such consent decree upon the
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`request of the Mining Defendants. The NM Settlement Agreement also provides that the
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`Court will retain jurisdiction to resolve any disputes between New Mexico and the Mining
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`Defendants, subject to the terms therein.
`
`F.
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`Navajo Nation and the Mining Defendants have entered into a Settlement
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`Agreement dated December 31, 2020 with respect to the NN Litigation (“NN Settlement
`
`Agreement”), and such NN Settlement Agreement provides that Navajo Nation and the
`
`Mining Defendants will enter into a consent decree with respect to CERCLA Response
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`Costs, and that New Mexico will also be a party to such consent decree upon the request of
`
`the Mining Defendants. The NN Settlement Agreement also provides that the Court will
`
`retain jurisdiction to resolve any disputes between Navajo Nation and the Mining
`
`Defendants, subject to the terms therein.
`
`G.
`
`This Consent Decree is the consent decree provided for in the NM
`
`Settlement Agreement and the NN Settlement Agreement.
`
`H.
`
`The Mining Defendants do not admit any liability to New Mexico or Navajo
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`2
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`Nation arising out of the transactions or occurrences alleged in the NM Litigation and the
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`NN Litigation. New Mexico does not admit any liability to the Mining Defendants in the NM
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`Litigation. The form of this Consent Decree is unique to the specific circumstances involved,
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`and is not precedent for any other consent decree.
`
`I.
`
`New Mexico, Navajo Nation, and Mining Defendants agree, and this Court by
`
`entering this Consent Decree finds, that this Consent Decree has been negotiated by the Parties in
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`good faith, that this Consent Decree in connection with settlement of this matter will avoid
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`prolonged and complicated litigation between the Parties, and that this Consent Decree is fair,
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`reasonable, and in the public interest.
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`NOW, THEREFORE, it is hereby ORDERED, ADJUDGED and
`
`DECREED:
`
`JURISDICTION
`II.
`This Court has jurisdiction over the subject matter of this action pursuant to 28
`
`1.
`
`U.S.C. §§ 1331 and 1345, and 42 U.S.C. §§ 9607 and 9613(b). Solely for the purposes of this
`
`Consent Decree, Mining Defendants waive all objections and defenses that any of them may
`
`have to subject matter jurisdiction of, personal jurisdiction of, or venue in this Court.
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` PARTIES BOUND
`III.
`This Consent Decree is binding upon New Mexico and Navajo Nation, and upon
`
`2.
`
`Mining Defendants and their respective successors and assigns. Any change in ownership or
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`corporate or other legal status, including, but not limited to, any transfer of assets or real or
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`personal property, will in no way alter the status or responsibilities of Mining Defendants under
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`this Consent Decree.
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` DEFINITIONS
`IV.
`Unless otherwise expressly provided in this Consent Decree, terms used in this
`
`3.
`
`3
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`Consent Decree that are defined in CERCLA or in regulations promulgated under CERCLA will
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`have the meaning assigned to them in CERCLA or in such regulations. All other words will be
`
`assigned their normal meaning. Whenever terms listed below are used in this Consent Decree,
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`the following definitions will apply:
`
`“CERCLA” means the Comprehensive Environmental Response, Compensation, and
`
`Liability Act, 42 U.S.C. §§ 9601-9675;
`
`“Consent Decree” means this Consent Decree;
`
`“Court” means the United States District Court for the District of New Mexico
`
`presiding over the Litigation;
`
`“Day” means a calendar day. In computing any period of time under this Consent
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`Decree, where the last day would fall on a Saturday, Sunday, or federal or State holiday, the
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`period will run until the close of business of the next working day;
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`“Effective Date” means 30 days from the date that this Court enters the Consent Decree,
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`unless an appeal of the entry of judgment is filed during the 30-day period; if an appeal is taken,
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`the Effective Date means the date on which the Court’s judgment is affirmed;
`
`“EPA” means the U.S. Environmental Protection Agency and its successor departments,
`
`agencies, or instrumentalities;
`
`“Future Response Costs” means all Response Costs after the Effective Date of this
`
`Consent Decree that New Mexico and/or Navajo Nation incurs arising from the release or
`
`threatened release of hazardous substances as alleged in the Litigation;
`
`“Gold King Blowout” means the incident on August 5, 2015 at the Gold King Mine,
`
`when an estimated three million gallons of water, approximately, exited the Gold King Mine
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`Level 7 adit and ultimately flowed into the Animas River and downstream waterways, which is
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`referenced in the Litigation;
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`“KGC” has the meaning ascribed in the initial paragraph in this Consent Decree;
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`“KGUSA” has the meaning ascribed in the initial paragraph in this Consent Decree;
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`“Litigation” has the meaning ascribed in Paragraph I.B.;
`
`“Mining Defendants” has the meaning ascribed in the initial paragraph in this Consent
`
`Decree;
`
`“Mining Defendants’ Related Parties” means: (i) Mining Defendants’ successors and
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`assigns but only to the extent that the liability of such person or entity is based on the liability of
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`Mining Defendants; (ii) Mining Defendants' former or current officers, directors and employees,
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`but only to the extent that the liability of any such person is based on acts and/or omissions
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`which occurred in the scope of the person's employment or capacity as an officer, director, and
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`employee; (iii) affiliates of Mining Defendants (“Mining Defendants’ Affiliates”); and (iv)
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`Mining Defendants’ Affiliates’ successors and assigns, but only to the extent that the liability of
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`such person or entity is based on the liability of Mining Defendants’ Affiliates;
`
`“Natural Resource Damages” means damages for purposes of CERCLA § 107(f)(1)
`
`and § 107(a)(4)(C) to “Natural Resources” as defined in CERCLA § 101(16), including those
`
`that may be recovered by a Natural Resource Trustee pursuant to 43 C.F.R. § 11.15;
`
`“Natural Resource Trustee” means the official(s) or person(s) designated as natural
`
`resource trustee(s) with authority over Natural Resource Damages under 42 U.S.C. § 107(f); 33
`
`U.S.C. § 2706, or other applicable federal or state or tribal law, including the ONRT with respect
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`to the State of New Mexico, and the applicable Natural Resource Trustee for Navajo Nation;
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`“Navajo Nation” means the Navajo Nation including in its capacities as sovereign,
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`including each department, agency, and instrumentality of the Navajo Nation, as parens patriae,
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`and as landowner, and it shall also mean the Natural Resource Trustee for the Navajo Nation;
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`“New Mexico” has the meaning ascribed in the initial paragraph in this Consent
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`5
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`Decree;
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`“NM Litigation” has the meaning ascribed in Paragraph I.A.;
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`“NM Plaintiffs” has the meaning ascribed in the initial paragraph in this Consent
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`Decree;
`
`“NM Settlement Agreement” has the meaning ascribed in Paragraph I.E.;
`
`“NN Litigation” has the meaning ascribed in Paragraph I.B.;
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`“NN Settlement Agreement” has the meaning ascribed in Paragraph I.F.;
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`“ONRT” has the meaning ascribed in the initial paragraph in this Consent Decree;
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`“Paragraph” means a portion of this Consent Decree identified by an Arabic numeral or
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`an upper or lower case letter;
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`“Parties” means New Mexico, Navajo Nation, and the Mining Defendants;
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`“Past Response Costs” means all Response Costs , including but not limited to direct and
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`indirect costs, and enforcement costs that New Mexico or Navajo Nation, as applicable, have
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`paid or incurred through the Effective Date of this Consent Decree, plus accrued interest on all
`
`such costs through such date, that New Mexico and/or Navajo Nation incurred arising from the
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`release or threatened release of hazardous substances as alleged in the Litigation;
`
`“Response Costs” means all costs of response, within the meaning of Sections
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`107(a)(4)(A), 107(a)(4)(B) 101(25) of CERCLA, (42 U.S.C. §§ 9607(a)(4)(A), 9607(a)(4)(B),
`
`9601(25)), including, but not limited to, direct and indirect costs, and enforcement costs, that
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`New Mexico and/or Navajo Nation incurred or incurs arising from the release or threatened
`
`release of hazardous substances as alleged in the Litigation.
`
`“Section” means a portion of this Consent Decree identified by a Roman numeral;
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`“SGC” has the meaning ascribed in the initial paragraph in this Consent Decree;
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`“Site” means for purposes of this Consent Decree the Bonita Peak Mining District
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`Superfund Site in San Juan County, Colorado, EPA Docket ID No. EPA-HQ-OLEM-2016-0152,
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`as published in the Federal Register on September 9, 2016, 81 Fed. Reg. 62397. The definition
`
`for this Site will be construed to include all areas of the Site ever defined or described by EPA
`
`for purposes of or in relation to the National Priorities List, 40 C.F.R. Part 300, including any
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`further expansion of such Site as may in the future be determined by EPA, and shall include any
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`lands of the state of New Mexico or Navajo Nation within the Site.
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` STATEMENT OF PURPOSE
`V.
`By entering into this Consent Decree, the mutual objective of the Parties is to
`
`4.
`
`effectuate the provisions of the NM Settlement Agreement and the NN Settlement Agreement
`
`with respect to the consent decrees referenced therein, and for New Mexico and Mining
`
`Defendants to resolve their alleged and respective civil CERCLA liability, and the CERCLA
`
`liability of Mining Defendants’ Related Parties, consistent with how such alleged liability is
`
`addressed in the NM Settlement Agreement and the NN Settlement Agreement, as provided in
`
`the covenants by New Mexico and Navajo Nation in Section VII, and as provided in the
`
`covenants by Mining Defendants in Section VIII, subject to the Reservation of Rights by the
`
`Parties in Section IX. With respect to such alleged liability, subject to the terms and conditions
`
`herein, this Consent Decree is intended to provide finality and the broadest protection afforded
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`by law to the Mining Defendants and Mining Defendants’ Related Parties.
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` PAYMENTS
`VI.
`Payments by Mining Defendants. The Mining Defendants’ payments for
`
`5.
`
`CERCLA claims have been or shall be paid as provided in the NM Settlement Agreement and
`
`the NN Settlement Agreement. The Mining Defendants shall pay: (a) to the NM Plaintiffs – Ten
`
`Million Dollars ($10,000,000.00), broken into payments of: (1) Five Million Dollars
`
`($5,000,000.00) to the Office of Attorney General (This amount shall be expended for costs, as
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`7
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`approved by the Court, and/or in the sole discretion of the Attorney General to address harms to
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`the State and its communities resulting from the release and to enhance the Office’s law
`
`enforcement efforts to prevent and prosecute environmental contamination); and (2) Five Million
`
`Dollars ($5,000,000.00) to the New Mexico Environment Department, which includes payment
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`of $1,000,000 to resolve the NM Plaintiffs’ CERCLA Response Cost claims; (b) to ONRT - One
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`Million Dollars ($1,000,000.00) for Natural Resource Damages claims arising from the Gold
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`King Blowout; and (c) to Navajo Nation - Ten Million Dollars ($10,000,000), which includes
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`payment of $1,000,000.00 for the Navajo Nation’s CERCLA claims resolved by the NN
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`Settlement Agreement.
`
`VII.
`
`6.
`
` COVENANTS BY NEW MEXICO AND ACKNOWLEDGEMENT
`BY NAVAJO NATION
`Covenants for Mining Defendants. Except as specifically provided in
`
`Paragraph 9 (General Reservations of New Mexico and Navajo Nation Rights), New Mexico
`
`covenants: (a) not to sue or to take administrative action against Mining Defendants or
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`Mining Defendants’ Related Parties pursuant to Sections 106, 107(a), and 113 of CERCLA,
`
`42 U.S.C. §§ 9606, 9607(a), and 9613, or under New Mexico state law, to recover Past
`
`Response Costs and Future Response Costs incurred by New Mexico; and (b) not to sue or
`
`to take administrative action against Mining Defendants or Mining Defendants’ Related
`
`Parties for those Natural Resource Damages settled and resolved in the NM Settlement
`
`Agreement.
`
`7.
`
`Navajo Nation acknowledges and agrees that the NN Settlement Agreement
`
`together with this Consent Decree resolves the alleged civil CERCLA liability of the Mining
`
`Defendants and Mining Defendants’ Related Parties for Navajo Nation’s Response Costs.
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` COVENANTS BY MINING DEFENDANTS
`VIII.
`Covenants by Mining Defendants. Except as specifically provided in Paragraph
`
`8.
`
`11 (General Reservations of Mining Defendants’ Rights), Mining Defendants covenant not
`
`to sue and agree not to assert any claims or causes of action against New Mexico or Navajo
`
`Nation for:
`
`a.
`
`any claim pursuant to Sections 107 or 113 of CERCLA, 42 U.S.C.
`
`§§ 9607 or 9613, or state law or Navajo Nation law regarding Past Response Costs and
`
`Future Response Costs and this Consent Decree; or
`
`b.
`
`any alleged response costs which Mining Defendants allege or may
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`allege they have incurred, as alleged in their CERCLA claims against NM Plaintiffs in
`
`the NM Litigation.
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` RESERVATIONS OF RIGHTS BY PARTIES
`IX.
`General Reservations of New Mexico and Navajo Nation Rights. New Mexico
`
`9.
`
`and Navajo Nation reserve, and this Consent Decree is without prejudice to, all rights against
`
`Mining Defendants and Mining Defendants’ Related Parties, and this Consent Decree is without
`
`prejudice to, with respect to all matters not expressly included within Paragraph 6 (Covenants for
`
`Mining Defendants) or Paragraph 7. Notwithstanding any other provision of this Consent
`
`Decree, New Mexico and Navajo Nation reserve, and this Consent Decree is without prejudice
`
`to, all rights against Mining Defendants and Mining Defendants’ Related Parties, with respect
`
`to:
`
`a.
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`liability for failure of Mining Defendants to meet a requirement of this
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`Consent Decree;
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`b. criminal liability; and
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`c. claims and rights of New Mexico and Navajo Nation reserved under the NM
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`9
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`Settlement Agreement and the NN Settlement Agreement;
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`10.
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`Notwithstanding any other provision of this Consent Decree, NM Plaintiffs
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`and Navajo Nation specifically reserve the ability and right to assert claims and defenses
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`against any parties in the Litigation other than the Parties.
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`11.
`
`General Reservations of Mining Defendants’ Rights. The Mining Defendants
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`reserve, and this Consent Decree is without prejudice to, all rights against New Mexico and
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`Navajo Nation with respect to all matters not expressly included within Paragraph 8 (Covenants
`
`by Mining Defendants). Notwithstanding any other provision of this Consent Decree, the
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`Mining Defendants reserve, and this Consent Decree is without prejudice to, all rights against
`
`New Mexico and Navajo Nation with respect to:
`
`a.
`
`liability for failure of New Mexico or Navajo Nation to meet a requirement of
`
`this Consent Decree; and
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`b. claims and rights of the Mining Defendants reserved under the NM Settlement
`
`Agreement and the NN Settlement Agreement.
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`12.
`
`Notwithstanding any other provision of this Consent Decree, the Mining
`
`Defendants specifically reserve the ability and right to assert claims and defenses against
`
`any parties in the Litigation other than the Parties.
`
`X.
`
` EFFECT OF SETTLEMENT/CONTRIBUTION PROTECTION
`Except as provided in Paragraphs 4, 6, 7, 14 and 15 as applicable to Mining
`
`13.
`
`Defendants’ Related Parties, nothing in this Consent Decree will be construed to create any
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`rights in, or grant any cause of action to, any person or entity not a Party to this Consent
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`Decree. Except as provided in Section VIII (Covenants by Mining Defendants), each of the
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`Parties expressly reserves any and all rights (including, but not limited to, pursuant to
`
`Section 113 of CERCLA, 42 U.S.C. § 9613), defenses, claims, demands, and causes of action
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`that it may have with respect to any matter, transaction, or occurrence relating in any way to
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`the Site against any person not a Party. Nothing in this Consent Decree diminishes the right
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`of New Mexico or Navajo Nation, pursuant to Section 113(f)(2) and (3) of CERCLA, 42 U.S.C.
`
`§ 9613(f)(2)-(3), to pursue any such persons to obtain additional response costs or response
`
`action and to enter into settlements that give rise to contribution protection pursuant to
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`Section 113(f)(2); provided, however, that nothing in this Paragraph 13 affects: (a) the
`
`enforceability of the covenants by New Mexico set forth in Paragraph 6 (Covenants for
`
`Mining Defendants), (b) New Mexico’s and Navajo Nation’s reserved rights set forth in
`
`Paragraph 9 (General Reservations of New Mexico and Navajo Nation Rights) and
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`Paragraph 10, or (c) the Mining Defendants’ reserved rights set forth in Paragraph 11 (General
`
`Reservations of Mining Defendants’ Rights) and Paragraph 12.
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`14.
`
`The Parties agree, and by entering this Consent Decree this Court finds, that
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`this Consent Decree constitutes a judicially-approved settlement pursuant to which each
`
`Mining Defendant and Mining Defendants’ Related Party, as of the Effective Date, resolved
`
`liability to New Mexico and Navajo Nation within the meaning of Section 113(f)(2) of
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`CERCLA, 42 U.S.C. § 9613(f)(2), and is entitled, as of the Effective Date, to protection
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`from contribution actions or claims as provided by Section 113(f)(2) of CERCLA, or as may
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`be otherwise provided by law, for the “matters addressed” in this Consent Decree. The
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`“matters addressed” in this Consent Decree are any liability of Mining Defendants and
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`Mining Defendants’ Related Parties for Past Response Costs and Future Response Costs of
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`New Mexico and Navajo Nation. The contribution protection set forth in this Paragraph is
`
`intended to provide the broadest protection afforded by CERCLA or state law or Navajo
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`Nation tribal law or otherwise for “matters addressed” in this Consent Decree.
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`15.
`
`The Parties further agree, and by entering this Consent Decree this Court
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`11
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`finds, that the NM Litigation and the NN Litigation filed by New Mexico and Navajo Nation are
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`civil actions within the meaning of Section 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(l),
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`and that this Consent Decree constitutes a judicially-approved settlement pursuant to which
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`each Mining Defendant, and each Mining Defendants’ Related Party, has, as of the Effective
`
`Date, resolved liability to New Mexico and Navajo Nation within the meaning of Section
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`113(f)(3)(B) of CERCLA, 42 U.S.C. § 9613(f)(3)(B).
`
` NOTICES
`XI.
`Whenever, under the terms of this Consent Decree, notice is required to be
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`16.
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`given or a document is required to be sent by one Party to another, it will be directed to the
`
`individuals at the addresses specified below, unless those individuals or their successors
`
`give notice of a change to the other Parties in writing. Except as otherwise provided, notice
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`to a Party by email (if that option is provided below) or by regular mail in accordance with
`
`this Section satisfies any notice requirement of the Consent Decree regarding such Party.
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`As to NM Plaintiffs by email:
`
`As to NM Plaintiffs by mail:
`
`As to ONRT by email:
`
`Cholla Khoury
`Assistant Attorney General
`New Mexico Protection Division
`Environmental Protection Division
`ckhoury@nmag.gov
`
`Cholla Khoury
`Assistant Attorney General
`New Mexico Protection Division
`Environmental Protection Division
`408 Galisteo St.
`Santa Fe, NM 87501
`
`Maggie Hart Stebbins
`Natural Resources Trustee
`New Mexico Office of Natural Resources Trustee
`Maggie.Hartstebbins@state.nm.us
`
`Bill Grantham
`Assistant Attorney General
`New Mexico Office of the Attorney General
`
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`As to ONRT by mail:
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`As to Navajo Nation by email:
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`As to Navajo Nation by mail:
`
`As to Mining Defendants by email:
`
`wgrantham@nmag.gov
`
`Maggie Hart Stebbins
`Natural Resources Trustee
`New Mexico Office of Natural Resources Trustee
`121 Tijeras Avenue, NE, Suite 1000
`Albuquerque, New Mexico 87102
`
`Bill Grantham
`Assistant Attorney General
`New Mexico Office of the Attorney General
`201 3rd Street NW, Suite 300
`Albuquerque, New Mexico 87102
`
`Paul Spruhan
`Assistant Attorney General
`Navajo Nation Department of Justice
`P.O. Box 2010
`Window Rock, AZ 86515
`paspruhan@nndoj.org
`
`Andrew K. Walsh
`Hueston Hennigan LLP
`Attorneys for the Navajo Nation
`523 West 6th Street, Suite 400
`Los Angeles, CA 90014
`awalsh@hueston.com
`
`Paul Spruhan
`Assistant Attorney General
`Navajo Nation Department of Justice
`P.O. Box 2010
`Window Rock, AZ 86515
`
`Andrew K. Walsh
`Hueston Hennigan LLP
`Attorneys for the Navajo Nation
`523 West 6th Street, Suite 400
`Los Angeles, CA 90014
`
`Christopher C. Stoneback
`Crowley Fleck PLLP
`Attorneys for Sunnyside Gold Corporation
`cstoneback@crowleyfleck.com
`
`Bradford C. Berge
`Holland & Hart, LLP
`
`13
`
`
`
`Case 1:16-cv-00931-WJ-LF Document 563 Filed 07/30/21 Page 16 of 21
`
`As to Mining Defendants by mail:
`
`Attorneys for Kinross Gold Corporation and
`Kinross Gold U.S.A., Inc.
`bberge@hollandhart.com
`
`Christopher C. Stoneback
`Crowley Fleck PLLP
`Attorneys for Sunnyside Gold Corporation
`490 North 31st Street, Suite 500
`Billings MT, 59101-1288
`
`Bradford C. Berge,
`Holland & Hart LLP
`Attorneys for Kinross Gold Corporation and
`Kinross Gold U.S.A., Inc.
`110 N. Guadalupe Street, Suite 1
`Sante Fe, NM 87501
`
` RETENTION OF JURISDICTION
`XII.
`This Court will retain jurisdiction over this matter for the purpose of
`
`17.
`
`interpreting and enforcing the terms of this Consent Decree. This Court will also retain
`
`jurisdiction over the NM Settlement Agreement and the NN Settlement Agreement, subject
`
`to the terms therein.
`
` INTEGRATION
`XIII.
`Together with the NM Settlement Agreement and the NN Settlement
`
`18.
`
`Agreement, this Consent Decree constitutes the final, complete and exclusive agreement and
`
`understanding among the Parties with respect to the matters in this Consent Decree.
`
`XIV.
`
` LODGING AND OPPORTUNITY FOR PUBLIC COMMENT
`This Consent Decree will be lodged with the Court for a period of at least 30
`
`19.
`
`Days for public notice and comment.
`
`20.
`
` Pursuant to Paragraph 14 “Further Assurances” of the NM Settlement
`
`Agreement and Paragraph 14 “Further Assurances” and Paragraph 5.B. “Certain CERCLA
`
`Provisions” of the NN Settlement Agreement, if for any reason this Court should decline to
`
`14
`
`
`
`Case 1:16-cv-00931-WJ-LF Document 563 Filed 07/30/21 Page 17 of 21
`
`approve this Consent Decree in the form presented, New Mexico and Navajo Nation and the
`
`Mining Defendants agree to reasonably cooperate with each other and to make additional
`
`filings as reasonably requested by the Mining Defendants to address the reason(s) provided
`
`by the Court in declining to approve. If subsequent Court approval of this Consent Decree is
`
`not obtained, the Parties agree to rely on the NM Settlement Agreement and the NN
`
`Settlement Agreement to govern their respective settlements, including any CERCLA-
`
`related provisions therein.
`
` SIGNATORIES
`XV.
`Each undersigned representative of a Mining Defendant and of New Mexico
`
`21.
`
`and Navajo Nation certifies that he or she is authorized to enter into the terms and conditions
`
`of this Consent Decree and to execute and bind legally such Party to this document.
`
` FINAL JUDGMENT
`XVI.
`Upon entry of this Consent Decree by the Court, this Consent Decree will
`
`22.
`
`constitute the final judgment between and among New Mexico, Navajo Nation, and the Mining
`
`Defendants with respect to the matters in this Consent Decree. The Court enters this
`
`judgment as a final judgment under Fed. R. Civ. P. 54 and 58.
`
`30th
`July
`SO ORDERED THIS _____ DAY OF _______________, 2021.
`
`
`_____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ _______________________________________________________________________ ___________________________________________________________________ _
`The Honorable William P. Johnson
`The Honorablblbbbbbbbbbb e WiWiWiWiWiiiiiiiiiiiiiiiiWiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiilllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllliaii m P. Johohohohohohhohohohohohohohohohohhhhhohhohhhhohohhhhhohhhhhhohhhhhhhhhhhhhhhhhhhhhhhhhhhhhhhn
`Chief United States District Judge
`
`[SIGNATURE PAGES FOLLOW]
`
`15
`
`
`
`Case 1:16-cv-00931-WJ-LF Document 563 Filed 07/30/21 Page 18 of 21
`Case 1:16-cv-00931-WJ-LF Document 563 Filed 07/30/21 Page 18 of 21
`
`STATE OF NEW MEXICO ex rel. Hector Balderas, ATTORNEY GENERAL for the
`State of New Mexico
`
`Digitally signed by P. Cholla Khoury
`
`By: P' Cho I la Kh o u ry Date: 2021.04.27 17:01:48 -06'00'
`
`Dated:
`
`NEW MEXICO ENVIRONMENT DEPARTMENT
`
`\éfi'b/
`Digitally signed by James Kenney
`
`Date: 2021.04.28 13:06:43 -O6'00I
`
`
`By:
`
`Dated:
`
`Approved as to form:
`
`-
`
`
`04/29/20210
`LL W04/29/2021
`. Jac son
`
`Willia
`
`Kelley Drye & Warren LLP
`Counsel for NM Plaintiffs
`
`NEW MEXICO OFFICE OF THE NATURAL RESOURCES TRUSTEE
`
`Digitally signed by
`Maggie.HartStebbins Maggie.HartStebbins
`
`Date: 2021.04.27 15:39:13 -06'00'
`
`
`By:
`
`Dated:
`
`Approved as to form:
`
`Digitally signed by William Grantham
`William Grantham D202104.2715:48:53-06'00'
`
`William Grantham
`
`Assistant Attorney General
`Counsel for ONRT
`
`16
`
`
`
`Case 1:16-cv-00931-WJ-LF Document 563 Filed 07/30/21 Page 19 of 21
`
`THE NAVAJO NATION:
`
`(in all capacities set out in the definition of Navajo Nation in Section IV)
`
`Doreen N.
`Digitally signed by Doreen
`N. McPaul
`By: __________________________________
`McPaul
`Date: 2021.05.05
`08:42:05 -06'00'
`Dated: ________________________________
`
`Approved as to form:
`Andrew Walsh Digitally signed by Andrew Walsh
`Date: 2021.05.05 11:06:28 -07'00'
`_____________________________________
`Andrew K. Walsh
`Hueston Hennigan LLP
`Counsel for Navajo Nation
`
`SUNNYSIDE GOLD CORPORATION
`
`By: __________________________________
`
`Dated: _______________________________
`
`Approved as to form:
`
`_____________________________________
`Neil G. Westesen
`Crowley Fleck, PLLP
`Counsel for SGC
`
`KINROSS GOLD CORPORATION
`
`By: ___________________________________
`
`Dated: ________________________________
`
`Approved as to form:
`
`____________________________________