Case 1:18-cv-00744-WJ-KK Document 226 Filed 10/13/20 Page 1 of 19
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW MEXICO
`
`
`
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` No. 1:18-md-02824-WJ
`
`
`In re: Gold King Mine Release in San Juan
`County, Colorado on August 5, 2015
`
`This Document Relates to:
`No. 16-cv-465-WJ/LF (consolidated
`with 16-cv-931-WJ-LF)
`No. 18-cv-319-WJ
`No. 18-cv-744-WJ
`
`
`
`
`
`
`DEFENDANT SUNNYSIDE GOLD CORPORATION’S MOTION FOR SUMMARY
`JUDGMENT ON GROUNDS OF LACK OF PERSONAL JURISDICTION
`AND SUPPORTING MEMORANDUM
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`I. INTRODUCTION
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`When this Court last visited the issue of whether personal jurisdiction exists over
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`Sunnyside Gold Corporation (SGC) eighteen months ago, it concluded that Plaintiffs had
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`satisfied their minimal burden at the dismissal stage by alleging facts sufficient to make a prima
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`facie showing of personal jurisdiction. See Mem. Op. and Order, Doc. Nos. 168, 172. After a
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`year and a half of discovery, however, the Plaintiffs have failed to produce evidence
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`demonstrating that SGC is subject to either general or specific personal jurisdiction in New
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`Mexico or Utah. As such, the Plaintiffs’ unsubstantiated jurisdictional allegations will no longer
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`suffice to sustain these lawsuits against SGC, and summary judgment should be granted on
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`grounds of lack of personal jurisdiction. See ASCO Healthcare, Inc. v. Heart of Tex. Health
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`Care and Rehab., Inc., 540 F.Supp.2d 634, 640-41 (D.Md. 2008) (“Because this Court has
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`permitted [plaintiff] to conduct extensive jurisdictional discovery, … plaintiffs must do more
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`than merely establish personal jurisdiction by the prima facie standard. Instead, [plaintiff] must
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`present substantial evidence to show that the defendants had the requisite minimum contacts with
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`Maryland to justify the Court’s exercise of personal jurisdiction.”) (internal quotations and
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`citation omitted). SGC has conferred with the parties and they oppose this motion.
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`II. LEGAL STANDARD
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`Rule 56(a) of the Federal Rules of Civil Procedure provides that the Court “shall grant
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`summary judgment if the movant shows that there is no genuine dispute as to any material fact
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`and that the movant is entitled to judgment as a matter of law.” Summary judgment is not a
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`“disfavored procedural shortcut,” but an important procedure “designed ‘to secure the just,
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`speedy and inexpensive determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317,
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`327 (1986) (quoting Fed. R. Civ. P. 1). The moving party bears the initial burden of
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`demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a
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`matter of law. Celotex, 477 U.S. at 323.
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`Once the movant has met this initial burden, the burden shifts to the non-moving party to
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`“set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty
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`Lobby, Inc., 477 U.S. 242, 256 (1986). In applying this standard, the Court views the evidence
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`and all reasonable inferences therefrom in the light most favorable to the non-moving party.
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`Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A “mere existence
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`of a scintilla of evidence” in support of the non-movant’s position, however, is insufficient;
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`“there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson,
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`477 U.S. at 252. Further, “[c]onclusory allegations that are unsubstantiated do not create an
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`issue of fact and are insufficient to oppose summary judgment.” Elsken v. Network Multi–
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`Family Sec. Corp., 49 F.3d 1470, 1476 (10th Cir. 1995).
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`III. STATEMENT OF UNDISPUTED MATERIAL FACTS
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`1.
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`SGC is a Delaware corporation with its principal place of business in Colorado.
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`Utah Am. Compl., ¶ 15; N.M. Am. Compl., ¶ 20, Allen Am. Compl., ¶ 312.
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`2.
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`SGC does not do business in New Mexico or Utah, is not licensed to do business
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`in New Mexico or Utah, and SGC does not have a registered agent in either state. K. Roach
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`Decl., ¶ 7 [Doc. 42-2].
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`3.
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`SGC does not own, lease, or maintain any property in New Mexico or Utah, nor
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`does it have any offices or operations in New Mexico or Utah. Id., ¶ 6.
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`4.
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`5.
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`SGC does not have any employees located in New Mexico or Utah. Id., ¶ 8.
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`At all relevant times, SGC acted in compliance with a Consent Decree, which was
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`entered and approved by a Colorado state District Court. Consent Decree [Doc. 42-1].
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`6.
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`In the Consent Decree, the Colorado Court acknowledged that SGC owned an
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`inactive mining property in San Juan County, Colorado, commonly referred to as the Sunnyside
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`Mine, and that SGC undertook reclamation and mining operations at the mine from 1985 to
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`1991. Id. at 2.
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`7.
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`The Colorado Court noted that the Colorado Mined Land Reclamation Board had
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`adopted and approved a reclamation plan that required SGC to design and install several
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`engineered, concrete bulkheads to retain water in the Sunnyside Mine. Id. at p. 4.
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`8.
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`The Consent Decree noted that the Colorado Division of Minerals and Geology
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`had concluded that “hydraulic seals [bulkheads] offer the best alternative for final mine site
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`reclamation” and that “the physical setting of the Sunnyside Mine appeared to be ideal for a
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`hydraulic sealing scheme.” Id. at p. 5.
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`9.
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`The Consent Decree, entered into by the State of Colorado and approved by a
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`Colorado Court, specifically contemplated that “installation of these bulkhead seals will impound
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`water behind the bulkheads, eventually flooding the Mine, and at some time subsequent to initial
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`Mine flooding, water, which is now discharged through the American Tunnel and Terry Tunnel
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`portals pursuant to the CDPS Permits, may flow through underground fractures and fault systems
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`which may form seeps and springs which discharge into surface waters.” Id. at p. 6.
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`10. While Colorado and SGC initially disagreed as to how any restored flows would
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`be handled, the Consent Decree reflected an agreement designed to improve water quality. The
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`Consent Decree states:
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`[T]o resolve this dispute, to allow SGC to proceed with final reclamation of the
`Sunnyside Mine, to provide for closure of the American and Terry Tunnels by
`hydraulic seals, to provide for mitigation of certain other historic mining
`conditions, to protect the waters of the State of Colorado, and to provide for final
`termination of CDPA Permits No. CO-00272529 and CO-0036056, the parties
`agree to the terms and conditions of this Consent Decree.
`
`
`Id. at p. 6-7.
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`11.
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`Finally, in the Consent Decree, the Colorado Court “ordered, adjudged and
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`decreed … that the settlement embodied in this Consent Decree is lawful under the [Colorado
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`Water Quality Control] Act, is consistent with the purposes of the Act, and is intended to protect
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`the waters of the State of Colorado.” Id. at p. 8 (emphasis added).
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`12.
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`EPA reviewed and commented on the Consent Decree and, on April 5, 1996, EPA
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`congratulated both SGC and the State on the Consent Decree and its stated purpose of improving
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`water quality in the Animas River.
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`The Environmental Protection Agency (EPA) commends both the State of
`Colorado and Sunnyside Gold Corporation (SGC) on your innovative approach to
`problems encountered in final closure of the Sunnyside Gold Mine. Further, the
`EPA is pleased that Colorado has chosen to use a watershed/trading approach as
`one step toward achieving the goals of improving water quality in the Animas
`River. As active members of the Animas River Stakeholders Group, EPA
`understands and supports the concepts of community based environmental
`protection.
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`Exhibit 1, USA_000025388.
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`13.
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` The purpose of bulkheads is to improve water quality by submerging exposed
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`metals in water, depriving them of oxygen, and thereby decreasing acid rock drainage. EPA and
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`the State of Colorado consultants Deere & Ault, in commenting on bulkheads in the Bonita Peak
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`Mining District, have plainly stated as much.
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`Water impounding concrete bulkheads installed at strategic locations in draining
`and discharging underground mine workings have the potential to flood the
`workings and create a mine pool that will eventually establish a ground water
`system with water table and flow paths similar to the pre-mining system. Saturation
`of sulfide minerals in the flooded workings and country rock will create relatively
`anoxic conditions and limit the generation of ARD [acid rock drainage]. Bulkhead
`installation eliminates rapid and continuous collection and discharge of ground
`water through open mine workings and minimizes direct discharge of ARD from
`mine portals….Bulkhead installation in mines that are determined to be good
`candidates has the potential to significantly reduce metal loading to receiving
`streams.
`
`Exhibit 2, ER_DRMS00003923.
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`14.
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` The bulkheads SGC installed reduced discharge from the American Tunnel from
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`approximately 1600 gallons per minute to less than 100 gallons per minute. As the State of
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`Colorado commented, “Installing a bulkhead at Sunnyside significantly improved the drainage.”
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`Exhibit 3, ER_DRMS00001949.
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`15.
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`The instant lawsuits arise out of the August 5, 2015 Gold King Blowout.
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`According to the State of Utah:
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`On the morning of August 5, 2015, the U.S. Environmental Protection Agency
`(“EPA”) and its contractors triggered an uncontrolled blowout at the Gold King
`Mine located about five miles north of Silverton, Colorado (the “Blowout”). The
`disaster dumped over three million gallons of acid wastes and toxic metals into
`Cement Creek and the Animas River, turning the river into a vivid orange brown
`color. As the flow continued downstream, those hazardous wastes were deposited
`along the Animas and San Juan Rivers, until the plume reached Lake Powell in
`Utah on August 14, 2015.
`
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`Utah Am. Compl., ¶ 1. As Utah notes: “EPA conceded it is responsible for the Blowout
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`and its impacts, stating: ‘EPA takes responsibility for the Gold King Mine release and is
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`committed to continue working hand-in-hand with the impacted local governments, states
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`and tribes.’” Id. at ¶ 2; see also id. at ¶ 59 (“The intentional actions of the EPA and
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`Contractor Defendants caused a breach in the adit, resulting in the Blowout.”).
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`16.
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`New Mexico’s Amended Complaint similarly alleges:
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`On August 5, 2015, the United States Environmental Protection Agency (“EPA”)
`and its contractors breached a collapsed portal of the Gold King Mine, releasing
`over three million gallons of acid mine drainage and 880,000 pounds of heavy
`metals into the Animas River watershed in southwestern Colorado. This massive
`release quickly overwhelmed Cement Creek, a tributary of the Animas River, and
`then snaked down the Animas through Colorado and into New Mexico, where the
`Animas joins the San Juan River. The sickly yellow plume of contamination then
`coursed through the San Juan River in New Mexico, the Navajo Nation, and into
`Utah. One week later the plume reached Lake Powell.
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`N.M. Am. Compl., ¶ 1.
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`
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`17.
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`The Navajo Nation’s First Amended Complaint alleges:
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`On August 5, 2015, the USEPA and other responsible parties caused an
`unprecedented environmental disaster when they recklessly burrowed into an
`abandoned gold mine (“Gold King Mine”) and released more than three million
`gallons of toxic acid mine waste into the waters upstream of the Nation. For nearly
`two days, the USEPA did not call, alert or notify the Nation that this toxic sludge
`had been released and was headed into their waters and land. At least 880,000
`pounds of heavy metals poured out and coursed through downstream waterways,
`including approximately two hundred miles of the San Juan River (the “River”).
`One of the Navajo people’s most important sources of water for life and livelihood
`was poisoned with some of the worst contaminants known to man, including lead
`and arsenic.
`
`N.N. First Am. Compl., ¶ 1.
`
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`18.
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`Finally, the Allen Plaintiffs allege:
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`On the morning of August 5, 2015, the Defendant United States Environmental
`Protection Agency (“EPA”) and its contractors caused a blowout of the Gold King
`Mine while excavating it.
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`The blowout caused the release of at least three million gallons of contaminated
`water into Cement Creek which flows to the Animas and San Juan Rivers. The
`toxic wastewater included dangerous contaminants such as arsenic and lead that
`were deposited along the Animas and San Juan Rivers.
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`EPA has conceded it is responsible for the spill and its impacts.
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`Allen Compl., ¶¶ 2-4.
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`IV. THE COURTS OF NEW MEXICO AND UTAH LACK PERSONAL
`JURISDICTION OVER SGC
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`To establish personal jurisdiction over an out-of-state defendant like SGC, the Plaintiffs
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`“must demonstrate that jurisdiction is proper under the laws of the forum state … and that the
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`exercise of jurisdiction complies with the Due Process Clause of the Fourteenth Amendment.”
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`Dental Dynamics, LLC v. Jolly Dental Group, LLC, 946 F.3d 1223, 1228 (10th Cir. 2020) (citing
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`Walden v. Fiore, 571 U.S. 277, 282, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014)). Because the long-
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`arm statutes of New Mexico and Utah both confer the jurisdiction permitted by constitutional
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`due process—see Resource Assocs. Grant Writing & Eval. Servs., Inc. v Southampton Union
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`Free Sch. Dist., 193 F.Supp.3d 1200, 1220 (D.N.M. 2016), and Edizone, LLC v. Asia Focus Int’l
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`Group, Inc., 196 F.Supp.3d 1222, 1225 (D. Utah 2016)—the relevant inquiry “is whether the
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`district court’s exercise of personal jurisdiction [over SGC] comports with due process.” C5
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`Medical Werks, LLC v. CeramTec GMBH, 937 F.3d 1319, 1322 (10th Cir. 2019) (citation
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`omitted).
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`The Due Process Clause of the Fourteenth Amendment “constrains a State’s authority to
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`bind a nonresident defendant to a judgment of its courts.” Walden, 571 U.S. at 283. The Due
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`Process Clause authorizes personal jurisdiction over an out-of-state defendant if two elements are
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`met. “First, a defendant must have ‘purposefully established minimum contacts within the forum
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`state.’” Dental Dynamics, 946 F.3d at 1229 (quoting Int’l Shoe Co. v. Washington, 326 U.S.
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`310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). “Second, the assertion of personal jurisdiction must
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`comport with traditional notions of fair play and substantial justice.” Id. at 1229 (citing Burger
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`King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)). Courts
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`analyze this constitutional due process question with reference to two forms of personal
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`jurisdiction: general or all-purpose jurisdiction, and specific or case-linked jurisdiction.
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`Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919, 131 S.Ct. 2846, 180
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`L.Ed.2d 796 (2011).
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`A.
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`The New Mexico and Utah Courts Lack General Personal Jurisdiction over
`SGC.
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`A defendant is subject to general personal jurisdiction within a State “when [its]
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`affiliations with the State are so ‘continuous and systematic’ as to render [it] essentially at home
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`in the forum State.” Old Republic Ins. Co. v. Continental Motors, Inc., 877 F.3d 895, 904 (10th
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`Cir. 2017) (quoting Goodyear Dunlop, 564 U.S. at 919). In that circumstance, the State court
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`may exercise jurisdiction over the defendant for any lawsuit. Id. at 903-04. However, it is only
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`in an “exceptional case” that “a corporation’s operations in a forum other than its formal place of
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`incorporation or principal place of business [will] be so substantial and of such a nature as to
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`render the corporation at home in that State.” Daimler AG v. Bauman, 571 U.S. 117, 139 n.19,
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`134 S.Ct. 746, 187 L.Ed.2d 624 (2014).
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`SGC is a Delaware corporation, and its principal place of business is in Colorado. SGC
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`does not do business in New Mexico, and SGC is not licensed to do business in New Mexico.
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`SGC does not have a registered agent in New Mexico, and SGC does not own, lease, or maintain
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`any property in New Mexico. SGC has no offices, operations, or employees in New Mexico.
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`
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`Quite clearly, it cannot be said that SGC’s affiliations with the states of New Mexico and
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`Utah are so “continuous and systematic” as to render it essentially “at home” in either of those
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`forums. The courts in those states plainly lack general personal. Similarly, SGC does not do
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`business in Utah, is not licensed to do business in Utah, and does not have a registered agent in
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`Utah. SGC does not own, lease, or maintain property in Utah. Nor does SGC have any
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`operations or employees in Utah. jurisdiction over SGC.
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`B.
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`The Courts Lack Specific Personal Jurisdiction over SGC.
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`Specific personal jurisdiction allows a court to exercise jurisdiction over an out-of-state
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`defendant only for claims related to the defendant’s contacts with the forum State. Old Republic,
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`877 F.3d at 904. The minimum contacts test for specific personal jurisdiction has two
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`requirements: “(1) a defendant must have ‘purposefully directed its activities at residents of the
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`forum state,’ and (2) the plaintiff’s injuries must arise out of the defendant’s forum-related
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`activities.” Dental Dynamics, 946 F.3d at 1229 (quoting Old Republic, 877 F.3d at 904). The
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`arising-out-of component “requires courts to ensure that there is an adequate link between the
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`forum State and the claims at issue, regardless of the extent of a defendant’s other activities
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`connected to the forum.” XMission, L.C. v. Fluent LLC, 955 F.3d 833, 840 (10th Cir. 2020)
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`(citing Bristol-Myers Squibb Co. v. Superior Court of Cal., 137 S.Ct. 1773, 1781, 198 L.Ed.2d
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`395 (2017)).
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`
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`For cases that have been consolidated as part of the Multidistrict Litigation process, the
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`Court must look to the forum where each action was filed and apply the law of the original forum
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`in determining whether personal jurisdiction exists. In re Sterling Foster & Co., Inc. Securities
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`Litig., 222 F. Supp. 2d 289, 300 (E.D.N.Y. 2002) (citing Van Dusen v. Barrack, 376 U.S. 612,
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`639–40, 84 S.Ct. 805, 821, 11 L.Ed.2d 945 (1964); In re Plumbing Fixtures Litig., 342 F.Supp.
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`756, 758 (Jud.Pan.Mult.Lit.1972)); see also Wright & Miller, § 3867 Law of the Case Doctrine
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`and the Effect of Transfer and Remand on Choice of Law, 15 Fed. Prac. & Proc. Juris. § 3867
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`(4th ed.). Accordingly, there are two separate inquiries at issue, whether there is personal
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`jurisdiction in New Mexico for those actions filed in New Mexico, and separately, whether there
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`is personal jurisdiction in Utah for the matter filed in Utah. SGC did not “purposefully direct”
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`activities at residents of either New Mexico or Utah.
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`
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`Purposeful direction can be established “when an out-of-state defendant’s intentional
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`conduct targets and has substantial harmful effects in the forum state.” Old Republic, 877 F.3d
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`at 907 (citing Calder v. Jones, 465 U.S. 783, 790-91, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984))
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`(Court’s emphasis); see also Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063,
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`1077 (10th Cir. 2008) (purposeful direction satisfied where “defendants undertook intentional
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`actions that were expressly aimed at [the] forum state”) (Court’s emphasis). “Purposeful
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`direction is a product of both the quantity and quality of a defendant’s contacts with the forum.”
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`XMission, 955 F.3d at 840 (citing OMI Holdings, Inc. v. Royal Ins. Co. of Canada, 149 F.3d
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`1086, 1092 (10th Cir. 1998)). As the Tenth Circuit recently summarized:
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`The requirement ensures that a defendant will not be subject to the laws of a
`jurisdiction solely as a result of random, fortuitous, or attenuated contacts, … the
`unilateral activity of another party or a third person, ... or the mere foreseeability
`that its actions may cause injury in that jurisdiction.
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`Id. at 840-41 (internal quotations and citations omitted).
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`
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`This case is the virtual paradigm of what fails to constitute “purposeful direction.” It is
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`undisputed that SGC’s reclamation work, including the installation of engineered concrete
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`bulkheads, was performed in Colorado, under the direct supervision of Colorado regulators, and
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`in accordance with the express requirements of a Consent Decree entered by a Colorado court. It
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`is undisputed that SGC’s state-sanctioned reclamation work was designed and intended to
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`improve water quality in Colorado, and “to protect the waters of the State of Colorado.” SGC
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`never purposefully directed any activities toward New Mexico or Utah. The capture and
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`retention of water in Colorado for purposes of improving water quality there is not, and cannot
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`possibly be, an activity “purposefully directed” at New Mexico or Utah.
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`
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`Here, as each Amended Complaint and subsequent discovery responses make clear, the
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`Plaintiffs’ causes of action and alleged injuries arise out of the events of August 5, 2015, when
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`the United States EPA and its contractors recklessly breached a collapsed portal at the Gold King
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`Mine and released three million gallons of mine impacted water into the Animas River. But for
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`the inexplicable and unforeseeable actions of EPA and its contractors on August 5, 2015, SGC
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`would not find itself as a named defendant in these actions.
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`More importantly, the “purposeful direction” requirement for haling SGC into the courts
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`of New Mexico and Utah is clearly missing. Once again, the “purposeful direction” requirement
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`“ensures that a defendant will not be subject to the laws of a jurisdiction solely as a result of
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`random, fortuitous, or attenuated contacts, [or] the unilateral activity of another party or a third
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`person….” XMission, 955 F.3d at 840 (quoting AST Sports Science, Inc. v. CLF Distrib. Ltd.,
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`514 F.3d 1054, 1058 (10th Cir. 2008)); see also Monge v. RG Petro-Machinery (Group) Co. Ltd.,
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`701 F.3d 598, 618 (10th Cir. 2012) (“[S]pecific jurisdiction must be based on actions by the
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`defendant and not on events that are the result of unilateral actions taken by someone else.”)
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`(quoting Bell Helicopter Textron, Inc. v. Heliqwest Intern., Ltd., 385 F.3d 1291, 1296 (10th Cir.
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`2004)). The event giving rise to the claims in this litigation was the August 5, 2015 Gold King
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`Blowout, an event caused entirely by EPA and its contractors.
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`
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`The bulkheads SGC installed years ago have accomplished precisely what they were
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`designed and intended to do, retain water in Colorado and thereby improve its quality. The
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`blowout was not of an SGC bulkhead, nor was it at any of SGC’s properties. It was the
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`collapsed Gold King Level 7 adit. But for the unforeseeable actions of EPA and its contractors
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`in addressing the collapsed Gold King Level 7 adit, this litigation would have never been filed.
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`Personal jurisdiction over SGC cannot result from the “unilateral actions” of EPA, nor from the
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`failure of the owners of the Gold King Mine to properly maintain their mine.
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`1.
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`The Plaintiffs’ alleged injuries did not “arise out of” SGC’s forum-
`related activities.
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`While general personal jurisdiction can rest exclusively on sufficient connections
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`
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`between the defendant and the forum, specific personal jurisdiction requires an additional
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`connection, one between the defendant, the plaintiffs’ claims, and the forum. That additional
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`requirement is what makes specific jurisdiction “case-linked.” Bristol-Myers, 137 S.Ct. at 1785.
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`That link is missing here.
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`
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`The Plaintiffs’ claims do not “arise out of” the contacts SGC allegedly has with New
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`Mexico and Utah. The “arising out of” prong of the minimum contacts analysis considers
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`“whether a nexus exists between the Defendant’s forum-related contacts and the Plaintiff’s cause
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`of action.” Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1160 (10th Cir. 2010)
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`(quoting TH Agric. & Nutrition, LLC v. Ace European Grp. Ltd., 488 F.3d 1282, 1291 (10th Cir.
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`2007)). As the Supreme Court has made clear, “[w]hen there is no such connection [between a
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`defendant’s forum-related contacts and plaintiff’s claims], specific jurisdiction is lacking
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`regardless of the extent of a defendant’s unconnected activities in the State.” Old Republic, 877
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`F.3d at 908 (quoting Bristol-Myers, 137 S.Ct. at 1781). The Plaintiffs claims are about the
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`Blowout. SGC did not cause the Blowout, and therefore the required “link” is missing.
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`
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`During jurisdictional discovery, in an attempt to create personal jurisdiction, the Plaintiffs
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`have argued that SGC historically treated water in Colorado but, following the Consent Decree
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`and bulkhead installation, SGC stopped doing so in 2003. The Plaintiffs then contend that
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`because water flows downhill and untreated water must be worse than treated water, there has
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`been a purposeful injury directed at New Mexico or Utah making jurisdiction appropriate. There
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`are several flaws with this analysis.
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`First, SGC’s original water treatment, and eventual cessation of that treatment, was
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`regulated and permitted by the State of Colorado. SGC operated the Gladstone Water Treatment
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`Plant from December 1985 through early January 2003, subject to Colorado Discharge Permit
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`System No. CO-0027529 issued by the State of Colorado acting pursuant to its EPA-delegated
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`water discharge permitting authority under the Clean Water Act (“CWA”). SGC’s Colorado-
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`issued CWA discharge permit authorized SGC’s pre-2003 discharge from the Sunnyside Mine in
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`accordance with the terms and conditions of the permit. SGC did not own and was not legally
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`responsible for operating the Gladstone Water Treatment Plant after January 13, 2003, and SGC
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`similarly did not release any waters from the Sunnyside Mine via the American Tunnel following
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`bulkhead installation. Exhibit 4, Dep. of Larry Perino, at 56, lines 12-25.
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`As expressly approved by Colorado regulators, and in full accordance with the terms and
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`conditions of the court-approved Consent Decree—as well as SGC’s Colorado-issued Mine Land
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`Reclamation Permit and Colorado’s reclamation permitting authority, in 2003, pursuant to the 4th
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`Amendment to the Consent Decree, SGC transferred CDPS Permit No. CO-0027529 to the Gold
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`King Mine Corporation (“GKMC”) for any residual discharges from the American Tunnel,
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`including any discharges from the Gold King Mine. See Consent Decree, Doc. 42-1 at p. 49-54,
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`including p. 50, ¶ 4, 51-52, ¶ 9 and 53, ¶ 2. Following the approved transfer of the American
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`Tunnel water discharge permit, SGC’s “obligation to continue operation of the water treatment
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`facility to treat Cement Creek or any seepage for the American Tunnel (and reclamation of the
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`ponds and surface disturbances) will terminate ....” Id. at p. 53, ¶ 2 (emphasis added).
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`Page 13 of 19
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`Case 1:18-cv-00744-WJ-KK Document 226 Filed 10/13/20 Page 14 of 19
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`Even assuming arguendo that SGC had anything to do with water discharge from the
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`American Tunnel or elsewhere after 2003 or treatment of that discharge or lack thereof, there is
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`no evidence that any such alleged discharge or lack of water treatment caused any cognizable
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`injuries downstream in New Mexico, or even more tenuously in Utah. Nor is there any evidence
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`that these discharges effected an actually detectable or measurable change in the quality of
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`downstream waters, specifically in the Animas and San Juan Rivers. In fact, it is undisputed
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`from publicly available water quality monitoring and biennial reporting by New Mexico to EPA
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`(as required under the CWA) that the opposite is true. The water quality at the Colorado – New
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`Mexico border met and satisfied, and continues to meet and satisfy, all New Mexico water
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`quality standards for metal parameters and pollutants of concern allegedly related to the residual
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`water discharges from the American Tunnel in and after 2003, as well as all Colorado water
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`quality standards Further, there are no CWA impaired waters listings for metals-related water
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`quality impairments for the stream segments of the Animas River located directly upstream or
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`downstream of the state border.
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`The State of Colorado’s 2018 Integrated Water Quality Monitoring and Assessment
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`Report (Colorado 2018 IR) (which summarizes the quality of Colorado’s waters from July 1,
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`2015 through June 30, 2017) and Colorado’s EPA-approved 2018 CWA § 303(d) List of
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`Impaired Waters both reflect that the Animas River in the stream segments located directly
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`upstream of the New Mexico-Colorado state border met all EPA-approved Colorado water
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`quality standards. Specifically, as included in the Colorado 2018 IR, the relevant Animas River
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`stream segments are listed as “all attaining” and “fully supporting” for all uses (Aquatic Life,
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`Recreational, Agricultural and Water Supply). See Colorado’s 2018 Integrated Water Quality
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`Monitoring and Assessment Report, prepared by CDPHE-WQCD pursuant to CWA §§ 303(d)
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`Page 14 of 19
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`Case 1:18-cv-00744-WJ-KK Document 226 Filed 10/13/20 Page 15 of 19
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`and 305(b) at p. 257, publicly available at:
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`https://www.colorado.gov/pacific/sites/default/files/2018%20IR.pdf. See also Colorado’s
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`Section 303(d) List of Impaired Waters, Regulation No. 93, 5 CCR 1002-93, last updated in Dec.
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`2017 (effective 3/1/18, and as approved by EPA 8/10/18) (the “Colorado 2018 § 303d Impaired
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`Waters List”), also publicly available at: https://www.colorado.gov/pacific/cdphe/impaired-
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`waters.
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`With the evident lack of water quality issues at the Colorado – New Mexico border as a
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`result of SGC’s reclamation, much less miles downstream in New Mexico, it is even less
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`credible to conclude that SGC’s reclamation activities in Colorado somehow created an even
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`more attenuated impact in Utah that could be sufficient to create personal jurisdiction in that
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`forum. SGC’s activities were regulated by and permitted in Colorado. To suggest that simply
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`because water flows downhill, SGC is subject to personal jurisdiction wherever that water might
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`flow, from Colorado to the Pacific Ocean, is to ignore the Clean Water Act’s permitting regime
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`and the requirements of intentional conduct designed to cause injury in a neighboring state. As
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`the Supreme Court has recognized, “The sovereignty of each State … implie[s] a limitation on
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`the sovereignty of all its sister States.” World-Wide Volkswagen Corp. v. Woodson, 222 U.S.
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`286, 293 (1980); see also Bristol-Myers Squibb Co. v. Superior Ct. of CA, 137 S.Ct. 1773, 1780-
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`1781 (2017).
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`As such, and absent any discernable injuries in New Mexico or Utah connected in any
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`way to permitted SGC discharges in Colorado, any Colorado releases cannot satisfy the
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`“purposeful direction” requirement of the specific jurisdiction analysis. See XMission, 955 F.3d
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`at 841 (“Purposeful direction may … be established … when an out-of-state defendant’s
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`intentional conduct targets and has substantial harmful effects in the forum state.”) (quoting Old
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`Page 15 of 19
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`Case 1:18-cv-00744-WJ-KK Document 226 Filed 10/13/20 Page 16 of 19
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`Republic, 877 F.3d at 907). Here, there is no evidence that any SGC conduct had any
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`discernable effects in New Mexico, much less a harmful effect. Nor is there evidence of any
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`discernable effects an entire state further away in Utah.
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`More importantly, any forum-related contacts SGC may have theoretically had with New
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`Mexico and Utah since the early 2000’s have no connection with the claims or alleged injuries
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`the Plaintiffs are pursuing in these lawsuits. Those claims and the alleged inju