Case 1:18-cv-00319-WJ Document 506 Filed 11/16/20 Page 1 of 24
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`MULTI-DISTRICT LITIGATION
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`1:18-MD-2824-WJ
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`IN RE: GOLD KING MINE RELEASE :
`IN SAN JUAN COUNTY, COLORADO :
`ON AUGUST 5, 2015
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`This Document Relates to:
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`No. 1:18-cv-319-WJ
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`PLAINTIFF THE STATE OF UTAH’S OPPOSITION TO DEFENDANT HARRISON
`WESTERN CONSTRUCTION CORPORATION’S MOTION TO DISMISS
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`I.
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`INTRODUCTION
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`Harrison Western (“Harrison”) files this motion to dismiss for a third time under Federal
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`Rule of Civil Procedure (“FRCP”) 12(b)(2). This motion should be denied because it has the
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`same defects as the prior attempts. Despite the Court’s guidance to Harrison, it has not followed
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`the proper procedures or resolved the disputed issues of fact that are fatal to its motion.
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`On procedural grounds, Harrison did not follow the Court’s directions, delaying for over
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`a year before filing this motion and failing to seek an evidentiary hearing by the Court-ordered
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`deadline. Consequently, Utah need only make a prima facie showing that jurisdiction exists, and
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`all factual disputes shall be resolved in Utah’s favor Utah when determining the sufficiency of
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`this showing. Rusakiewicz v. Lowe, 556 F.3d 1095, 1100 (10th Cir. 2009). The Court held in
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`denying the prior motions to dismiss that Utah has made the necessary prima facie showing of
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`personal jurisdiction over Harrison, see Court Order dated March 26, 2019 (Dkt. 167). That
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`ruling is law of the case, and the genuine issues of material fact remain at issue in this case.
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`On substantive grounds, the courts have uniformly held that a defendant who causes
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`pollution in a river that damages a downstream state is subject to the specific jurisdiction of that
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`Case 1:18-cv-00319-WJ Document 506 Filed 11/16/20 Page 2 of 24
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`state. Utah has found no case supporting Harrison’s contrary argument, and Harrison cites none.
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`Even if it was considered, Harrison’s extrinsic evidence on a FRCP 12 motion further establishes
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`Utah’s specific and general jurisdiction over Harrison. This motion should be denied for each of
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`these separate and independent reasons.
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`II.
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`PROCEDURAL BACKGROUND
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`A.
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`Harrison’s Two Prior FRCP 12 Motions are Denied
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`Utah and Environmental Restoration (“ER”) filed claims against Harrison for its role in
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`causing the Gold King Mine Blowout. (Harrison Exhibit (“Exh.”) A; Dkt. 218-1 at 31-34.)
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`Harrison filed its first FRCP 12 motion to dismiss Utah’s First Amended Complaint and ER’s
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`claims on July 25, 2018 (Dkt. 41). Before the hearing and without leave of Court, Harrison filed
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`a second FRCP 12 motion on August 3, 2018 (Dkt. 48). On March 26, 2019, the Court denied
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`both motions (Dkt. 167). In relevant part, the Court held:
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`Although the statements in the declarations appear to support Harrison
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`Western’s contentions that the Court does not have jurisdiction and that Utah
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`cannot state a claim on which relief may be granted, there has been no evidentiary
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`hearing. Consequently, the Court must resolve all factual disputes in favor of
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`Plaintiff Utah. The allegations in Utah’s First Amended Complaint, which in
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`many cases refer only to the “Contractor Defendants” (ER, Weston Solutions, and
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`Harrison Western), make a prima facie showing that jurisdiction exists and state
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`claims upon which relief may be granted.
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`After an opportunity for discovery, Special Master Hon. Alan C.
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`Torgerson shall hold an evidentiary hearing and file proposed findings of fact
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`2
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`Case 1:18-cv-00319-WJ Document 506 Filed 11/16/20 Page 3 of 24
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`regarding the Court’s personal jurisdiction over Harrison Western. After the
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`Court rules on any objections to the Special Master’s proposed findings of fact,
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`Harrison Western may file another motion to dismiss.
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`B.
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`Harrison Fails to Comply with the Court’s March 26, 2019 Order
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`Harrison did not comply with the Court’s Order as to Utah. On July 1, 2019, Harrison
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`filed its Answer to Utah’s first amended complaint (Dkt. 201). The parties then negotiated case
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`deadlines that were considered and ordered by Judge Torgerson on June 19, 2020, including a
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`deadline of October 13, 2020 for the filing of any motions regarding personal jurisdiction (Dkt.
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`641). On October 13, 2020, Harrison filed the instant motion under FRCP 12(b)(2) repeating
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`that Utah had no personal jurisdiction over Harrison (Dkt. 865). Harrison did not seek or obtain
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`an evidentiary hearing before filing this motion. Harrison stipulated with ER, but not Utah, to a
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`different procedure allowing Harrison to assert its personal jurisdiction arguments by affirmative
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`defense (Dkt. 269). Harrison has not filed a dispositive motion to resolve the factual issues
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`raised by Utah’s and ER’s pleadings, leaving genuine disputed issues of material facts at issue.
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`III.
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`FACTS
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`The facts are alleged in Utah’s First Amended Complaint (“FAC”), ER’s third-party
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`claims and in jurisdiction discovery responses by the parties. In 2014, Defendant EPA began a
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`removal site evaluation to investigate the possibility of opening the collapsed portal at the Level
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`7 Adit at the Gold King Mine. (Case No. 1:18-cv-00319-WJ Dckt. 93, FAC ¶ 35.) EPA used
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`the services of contractors under EPA Superfund Technical Assessment and Response Team
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`(“START”) and EPA Emergency and Rapid Response Service (“ERRS”) contracts. (Id.)
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`Defendant ER was the ERRS contractor at the Gold King Mine and Defendant Weston Solutions
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`was the START contractor. (Id. at ¶ 36.) Harrison is a Colorado corporation that served as a
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`subcontractor to ER under its ERRS contract at the Gold King Mine. (Id. at ¶ 12.) Harrison
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`performed excavation work at the Gold King Mine site in 2014 on the blockage that covered the
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`mine portal. (ER Interrogatory Response No. 2 (“ER Response”), Hsiao Exhibit (“Exh.”) B).
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`Harrison had independent authority and control to perform its duties and take necessary actions
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`to work in a safe and proper manner, to avoid a blowout and resulting damages. (FAC at ¶ 36.)
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`Harrison created, in material respects, the plan to excavate and/or open the Gold King
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`Mine portal while under contract with ER, when advised by ER that the conditions inside the
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`Gold King Mine (vis-à-vis impacted water, water pressure, blockage, and similar factors that
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`could trigger a potential release) were unknown. (ER Response No. 2, Hsiao Exh. B). When
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`Harrison began the excavation work in 2014, it observed that seepage was emerging from the
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`backfill at an elevation about six feet above the adit floor. (Id. at ¶ 39.) Harrison presumed that
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`water had accumulated behind the blockage. (Id.) Harrison incorrectly concluded there were six
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`feet of water impounded in the mine because seepage was not occurring higher up on the
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`blockage. (Id. at ¶ 40.) Harrison suspended the work at the Gold King site until 2015 because it
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`had uncovered conditions that required it to plan to treat a greater quantity of water potentially
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`accumulated behind the blockage. (Id. at ¶ 41.) Harrison participated in planning for work to be
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`performed at the Gold King Mine in 2015 and was scheduled to deploy to the mine later in
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`August 2015. (Id. at ¶ 36.)
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`Based on its observations, Harrison incorrectly assumed that the contaminated water level
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`was below the top of the adit. (Id. at ¶ 46.) Harrison also assumed that, because the mine was
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`draining, it was not under pressure from the contaminated water behind it. (Id. at ¶ 47.) Thus,
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`Harrison believed it was not necessary to directly test for the level or volume of contaminated
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`water behind the blockage. (Id. at ¶ 48.)
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`Harrison did not insert a measuring device from a location at a higher elevation from the
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`blockage at the adit to determine the level of contaminated water behind it. (Id. at ¶ 49.)
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`Harrison did not take a measurement to determine the pressure of the contaminated water against
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`the blockage at the adit. (Id. at ¶ 50.) Harrison did not take precautions to design or install
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`containment measures, including but not limited to a secondary containment system, such as a
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`catch basin of proper size and capability, to prevent an accidental release of large quantities of
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`toxic wastewater from reaching the Animas River. (Id. at ¶ 51.) Harrison also did not take the
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`precaution of developing and implementing emergency response procedures in the event of an
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`accidental release of large quantities of toxic wastewater, to prevent those toxic chemicals from
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`reaching the Animas River. (Id. at ¶ 52.) Harrison did not provide advance warning to other
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`agencies or municipalities of their work so that they could be prepared for an accident. (Id.)
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`Harrison was required to develop a Health and Safety Plan that complied with OSHA
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`requirements for hazardous waste site operations in 29 C.F.R. § 1910.120 and with EPA
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`regulations for response actions per 40 C.F.R. § 300.700(c)(5)(i). (FAC at ¶ 53.) Its Health and
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`Safety Plan did not comply with these requirements. (Id.) Harrison was subject to various
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`mandatory laws, regulations, and policies that removed or circumscribed their discretion in
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`carrying out the work at the Gold King site, including but not limited to the Federal Mine Safety
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`and Health Act of 1977 (U.S.C. § 877(b)) and Title 30, Code of Federal Regulations, Part 75 (30
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`C.F.R. §§ 75.372, 75.388(a)(2), 75.1200). (FAC at ¶ 54.) Harrison’s conduct violated these
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`laws, regulations, and policies.
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`Harrison participated in decisions about how to perform the work at the adit in 2015.
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`(ER Response No. 2, Hsiao Exh. B.) It declined to attend a meeting at the Gold King Mine
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`scheduled for August 5, 2015. (Id.) Harrison did not accurately measure the level, volume, or
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`pressure of the toxic wastewater behind the blockage before EPA and the other contractors
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`performed the work on August 5, 2015. (Id. at ¶ 56.) The persons at the Gold King site on
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`August 5, 2015 have given conflicting accounts regarding the nature and objectives of their work
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`on that day. (Id. at ¶ 57.) This conflict was caused by miscommunication among Harrison,
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`EPA, and the other contractors. (Id. at ¶ 58.) As a result, EPA and the other contractors did not
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`clearly understand their work, or how to safely and properly accomplish the work given the
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`dangers presented by the Gold King site. (Id.)
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`Harrison’s intentional actions caused a breach in the adit, which resulted in the August 5,
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`2015 Blowout. (Id. at ¶ 59.) Harrison’s actions and failures to take reasonable and necessary
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`precautions before, during, and after the Blowout were wrongful. (Id.) Harrison had an
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`independent duty and the authority to take the necessary actions and to perform its work in a
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`manner to prevent the Blowout. (Id.)
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`Harrison further created its plan with knowledge that the Gold King Mine was upstream
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`from New Mexico and Utah, and that a release could therefore potentially impact the waterways
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`of New Mexico and Utah. (ER Response No. 2, Hsiao Exh. B.) The Blowout released
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`approximately 3,000,000 gallons of hazardous, toxic orange-brown wastewater into the Animas
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`River. (Id. at ¶ 60.) Toxic wastes from the Blowout have been and are being transported
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`through the Animas and San Juan River system to Lake Powell in the State of Utah, among other
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`locations. (Id. at ¶ 61.)
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`All of Harrison’s acts and omissions related to the management of mining waste that was
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`generated at, and flowed out of, the Bonita Peak Mining District. (ER Response No. 2, Hsiao
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`Exh. B.) Harrison was aware that all mining waste released from this property flowed into
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`Cement Creek, which flowed downstream to the Animas River, the San Juan River and
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`ultimately Lake Powell in the States of New Mexico and Utah. (Id.) Harrison therefore was
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`aware that the consequences of any actions it took in the Bonita Peak Mining District related to
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`management of planning for adit openings and mining waste would ultimately impact and be felt
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`in the downstream States. (Id.) Harrison knew or should have known that the release of
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`contaminants could and would be transported to Utah to damage its environment, and Harrison
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`intentionally committed the actions that resulted in the release. (Id.) The Blowout has caused
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`environmental, economic, and other damage to the State of Utah, and will require the incurrence
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`of recoverable costs from Harrison, including but not limited to those for the immediate
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`response,
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`investigation, remediation, restoration, and compensation for damages,
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`lose
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`environmental values, and use. (Id. at ¶ 62.)
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`IV. ARGUMENT
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`A.
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`Harrison’s Motion is No Longer Permitted under FRCP 12(b)
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`In relevant part, FRCP 12(b) states “[a] motion asserting any of these defenses must be
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`made before pleading if a responsive pleading is allowed.” See also FRCP 8(h). Harrison could
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`have followed the Court’s directions in its March 26, 2019 Order, to seek an evidentiary hearing
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`from the Special Master, development of proposed findings of fact, and submittal of those
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`findings to this Court to hear any objections, before filing another motion to dismiss. Harrison
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`did not choose this option Utah’s claims, and the Court-ordered deadline to file any motion
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`regarding personal jurisdiction by October 13, 2020 has expired.
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`“[A] defendant may implicitly waive the defense by waiting a significant period after
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`filing the answer to submit a rule 12(b)(2) motion. Fabara v. Gofit, LLC, 308 F.R.D. 380, 393-
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`94 (2015). In surveying the reported cases, the Fabara Court found a two- to seven-month delay
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`was insufficient to constitute waiver. Id. at 400. A waiver was found where defendant waited
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`nine months, see Schwartz v. M/V Gulf Supplier, 116 F.Supp.2d 831, 835 (S.D.Tex.2000) to file
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`a rule 12(b)(2) motion after first asserting the defense.
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`FRCP 12(b) motions by rule are to be brought early in the proceedings, not years after the
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`case is filed, as Harrison attempts here. The explicit timing provisions of the rule should be
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`applied to Harrison just as they are to every other defendant. At this late stage, Utah will be
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`prejudiced if Harrison’s election regarding how to proceed does not bind it and Utah is not
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`allowed to rely on the rule to proceed with its case.
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`B.
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`Standard of Review
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`Because Harrison did not follow the Court’s Order, it faces the denial of its prior two
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`FRCP 12(b)(2) motions and the finding that Utah has made a prima facie showing of its personal
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`jurisdiction over Harrison as law of the case. The evidentiary problem remains unsolved for
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`Harrison. “[w]here there has been no evidentiary hearing, as in this case, and the motion to
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`dismiss for lack of jurisdiction is decided on the basis of affidavits and other written material, the
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`plaintiff need only make a prima facie showing that jurisdiction exists.” Rusakiewicz v. Lowe,
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`556 F.3d 1095, 1100 (10th Cir. 2009) (internal quotes and ellipses omitted). “All factual
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`disputes are resolved in favor of the plaintiffs when determining the sufficiency of this showing.”
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`Id. Here, all of the fact issues raised by Utah and ER in the pleadings present genuine disputed
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`issues of material facts regarding personal jurisdiction, precluding the granting of this motion.
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`Harrison itself has created additional disputed issues of substantive fact because it failed
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`to preserve key evidence contained in its electronic databases. (Harrison Supplemental
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`Document Production Response, Hsiao Exh. A.) Under Federal Rule of Civil Procedure 37(e),
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`Harrison failed to take reasonable steps to preserve this electronically stored information, that
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`should have been preserved in the anticipation or conduct of litigation. Harrison asserts this
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`information cannot be restored, and whether it can be replaced through additional discovery will
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`be the subject of additional hearing to determine the prejudice to the other parties.
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`Because of Harrison’s failure, the record is incomplete but sufficient to establish the
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`Court’s personal jurisdiction over Harrison. Utah showed “first, that the exercise of jurisdiction
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`is sanctioned by the state’s long-arm statute; and second, that it comports with the due process
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`requirements of the Fourteenth Amendment.” Marcus Food Co. v. DiPanfilo, 671 F.3d 1159,
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`1166 (10th Cir. 2011). As Harrison concedes, Utah’s long-arm statute allows exercise of
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`personal jurisdiction “to the fullest extent permitted by the due process clause of the Fourteenth
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`Amendment . . . .” Utah Code Ann. § 78B-3-201(3). (Dkt. 41 at 10.) Thus, the first prong is
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`irrelevant here. See Resource Assoc. Grant Writing v. Southampton Union, 193 F. Supp. 3d
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`1200, 1220 (D.N.M. 2016); Stairways, Inc. v. Curry, 980 P.2d 204, 206 (Utah 1999).
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`“This collapses the Utah standard into the more general ‘due process’ standard for
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`jurisdiction.” Rusakiewicz, 556 F.3d at 1100. The Court need only conduct the constitutional
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`due process inquiry. Marcus Food Co., 671 F.3d at 1166. The specific jurisdiction inquiry is
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`two-fold. First, the court must determine whether the defendant has “minimum contacts” with
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`the forum state. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1071 (10th Cir.
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`2008). These minimum contacts are established if the defendant has “purposefully directed” its
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`activities at the forum state and the litigation results from alleged injuries that “arise out of or
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`relate to” those activities. Id. Once a plaintiff makes this showing, the defendant must “present
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`a compelling case” that the exercise of jurisdiction over it would be “unreasonable.” Id. at 1080.
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`The “minimum contacts” standard may be met in either of two ways. Trierweiler v.
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`Croxton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir. 1996). Specific jurisdiction —
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`based on a matter occurring in the forum state — exists when the defendant “purposely avails
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`itself of the privilege of conducting activities within the forum state, thus invoking the benefits
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`and protections of its laws.” Id., citing Hanson v. Denckla, 357 U.S. 235, 253 (1958). General
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`jurisdiction lies when the defendant's contacts with the forum state are so “continuous and
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`systematic” that the state may exercise personal jurisdiction over the defendant, even if the suit is
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`unrelated to the defendant’s contacts with the state. Id. at 1522, citing Helicopteros Nacionales
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`de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 & n. 9 (1984). Both specific and general
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`jurisdiction are present here.
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`C.
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`Utah Has Specific Personal Jurisdiction Over Harrison
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`The Court’s Order addressed Utah’s specific jurisdiction over Harrison. The Fourteenth
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`Amendment allows specific personal jurisdiction where a defendant has “minimum contacts”
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`with the forum state. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1070 (10th
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`Cir. 2008). This standard requires “first, that the out-of-state defendant must have ‘purposefully
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`directed’ its activities at residents of the forum state, and second, that the plaintiff’s injuries must
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`‘arise out of’ defendant’s forum-related activities.” Id. at 1071.
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`In the tort context, courts find purposeful direction if three elements are satisfied: (1) the
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`defendant took an intentional action, that was (2) expressly aimed at the forum state, with (3)
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`knowledge that the brunt of the injury would be felt in the forum state. Id. at 1072, citing Calder
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`v. Jones, 465 U.S. 783 (1984). “Additionally, exercising personal jurisdiction over defendants
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`must always be consistent with traditional notion of fair play and substantial justice. Id. at 1071.
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`Each of the above elements are discussed below.
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`1.
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`Harrison Committed Intentional and Wrongful Actions
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`Harrison does not dispute that by asserting claims for negligence, gross negligence,
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`trespass, and public and private nuisance, Utah has alleged Harrison committed intentional and
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`tortious actions. See Dudnikov, 514 F.3d at 1073 (avoiding the “thicket” of determining whether
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`allegations of wrongful behavior are necessary under Calder v. Jones, 465 U.S. 783 (1984)
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`because the plaintiffs’ complaint alleged wrongful conduct); see also Old Republic Ins. Co., 877
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`F.3d 895, 917 n.35 (10th Cir. 2017) (emphasizing that a defendant need not “actually intend to
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`harm forum state residents” for jurisdiction to be proper). (NM FAC ¶¶ 5-7, 30-43; NN FAC ¶¶
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`45-52; UT FAC ¶¶ 3, 82-84, 86-88, 91-101.) The first element of purposeful direction is present
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`here.
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`In addition, as discussed above, Harrison took a number of intentional acts. During and
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`after its 2014 visit to the Gold King site, Harrison intentionally (but incorrectly) concluded there
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`were only six feet of toxic wastewater impounded in the mine, the water was not under pressure
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`and was below the top of the adit, and that it was not necessary to test for the level or volume of
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`the water behind the blockage. (FAC ¶¶ 40, 46-48.) Harrison intentionally developed a Health
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`and Safety Plan that did not comply with applicable law. (Id. at ¶ 53.) Harrison intentionally
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`caused miscommunication among Harrison, EPA, and the other contractors, which led to the
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`Blowout. (Id. at ¶ 58.)
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`The FAC and jurisdictional discovery also show that Harrison wrongfully and
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`intentionally failed to act in a number of ways. Harrison intentionally failed to insert a
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`measuring device behind the blockage to determine the water level, volume, and pressure behind
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`the blockage. (Id. at ¶¶ 49-50, 56.) Harrison intentionally did not design or install sufficient
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`containment measures, or adopt sufficient emergency response procedures, to prevent an
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`accidental release from the mine from reaching the Animas River. (Id. at ¶¶ 51-52.) Harrison
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`intentionally did not provide advance warning to other agencies or municipalities so they could
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`be prepared for an accident. (Id. at ¶ 52.)
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`Harrison attempts to submits extrinsic evidence in the form of declarations that further
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`admit to Harrison’s intentional actions. Harrison admits it undertook various “work and services
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`in connection with the Gold King Mine” that were directed toward the reopening and
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`reclamation of the Mine. (Dckt. 41-3 at ¶¶ 9-10.) Harrison admits it visited the Mine in late July
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`2014, discussed opening the mine, and prepared a plan to re-open the Mine based on those
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`discussions. (Id. at ¶¶ 4-5.) Harrison admits it visited the mine again on September 11, 2014 “to
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`evaluate and assess the mine conditions and, if appropriate, to begin the work necessary to
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`prepare the mine for re-opening . . . .” (Id. at ¶¶ 9-10.) Harrison admits it made observations
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`and came to conclusions about the conditions behind the blockage, which were communicated to
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`and discussed with ER. (Id. at ¶¶ 10-14.) Harrison admits it drafted a new work plan, shared
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`that plan with ER prior to the Blowout, and that the plan was made part of ER’s own plan. (Id. at
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`¶¶ 17-20.) In short, the uncontroverted evidence in the FAC, and Harrison’s own proffered
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`affidavits, demonstrate that Harrison took intentional acts and this element is therefore satisfied.
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`2.
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`Harrison’s Intentional Actions Were Expressly Aimed at Utah
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`The event complained of is not merely the August 5 blowout, but the cause of the
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`blowout. And the intent of Harrison’s intentional conduct was not just to address contamination
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`at the focal point of the waters of the State of Colorado, but a river system that travels through
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`New Mexico, the Navajo Nation, and Utah. See Dudnikov, 514 F.3d at 1075 (holding that
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`express aiming test looks to the “focal point” of defendant’s intentional acts). As Harrison
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`admits, “[t]he spill, of course, ultimately brought contaminated wastewater from the Gold King
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`Mine into the San Juan River and eventually into Lake Powell.” Harrison Motion at p. 18.
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`Harrison knew that its conduct affected toxic mine water that entered the Animas and San Juan
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`Rivers, where it would flow downstream into New Mexico, the Nation, and Utah. (UT FAC ¶¶
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`21-23; ER Response No. 2, Hsiao Exh. B.) Utah alleges these releases caused the river system to
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`become a downstream dumping ground for the toxic mine water released from the Gold King
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`Mine. Harrison enjoyed a substantial financial benefit from discharging waste into Utah’s waters
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`without having to comply with its laws and regulations.
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`Courts have found express aiming (and purposeful direction in general) based on
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`analogous facts. See Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493, 500 (1971) (noting that
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`“under modern principles of … in personam jurisdiction” state courts have jurisdiction over acts
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`committed beyond their territorial boundaries that create a nuisance in their state.”); see also
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`Welch v. PUC Servs., Inc., 2007 WL 2818805, at *8 (W.D. Mich. Sept. 25, 2007) (finding
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`defendant purposefully directed conduct at Michigan based on “improper discharge of human
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`waste into the St. Mary’s River which caused damage to property owners down river from the
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`discharge.”); Violet v. Picillo, 613 F. Supp. 1563, 1577 (D.R.I. 1985) (“[E]ach defendant’s
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`decision to send its toxic wastes on a virtual one-way journey” was sufficient to confer
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`jurisdiction).
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`In every reported case with similar facts to this case, the court found personal jurisdiction
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`in a downstream state that suffered the impacts of water pollution caused by an upstream, out-of-
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`state party. In Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565 (9th Cir. 2018), cert.
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`denied, 139 S.Ct. 2693 (2019), the Court upheld Washington State’s exercise of personal
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`jurisdiction over a Canadian smelting company that caused toxic waste to be transported in a
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`river in Canada that flowed into the state. The Court held that “[i]t is no defense that Teck's
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`wastewater outfalls were aimed only at the Columbia River, which in turn was aimed at
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`Washington. Rivers are nature’s conveyor belts. Teck simply made use of the river’s natural
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`transport system throughout the 1900s, much like lumberjacks of that period who would roll
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`timber into a stream to start a log drive.” Id. at 578. See also Pakootas v. Teck Cominco Metals,
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`Ltd., 2004 WL 2578982, at *3 (E.D. Wash. Nov. 8, 2004), aff’d, 452 F.3d 1066 (9th Cir. 2006)
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`(“The facts alleged in the individual plaintiffs’ complaint and the State of Washington’s
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`complaint-in-intervention satisfy [the purposeful direction] test. . . . The allegation is that
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`disposing of hazardous substances into the Columbia River is an intentional act expressly aimed
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`at the State [of] Washington in which the Upper Columbia River and Franklin D. Roosevelt Lake
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`are located. This disposal causes harm which defendant knows is likely to be suffered
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`downstream by the State of Washington and [] individuals . . . .”).
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`Case 1:18-cv-00319-WJ Document 506 Filed 11/16/20 Page 15 of 24
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`In Triad Hunter, LLC v. Eagle Natrium, LLC, 2019-Ohio-940, ¶ 40, 132 N.E.3d 1272, the
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`Ohio Court of Appeals reversed the trial court’s grant of a motion to dismiss, finding personal
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`jurisdiction over defendants who had conducted mining activities and released polluting
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`substances that caused damage in the neighboring state. The Court ruled that “[c]ontinuing to
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`release a substance while knowing it travels to a jurisdiction is considered purposeful direction of
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`efforts toward that jurisdiction.” Id. at 1285.
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`In Ex parte Aladdin Mfg. Corp., No. 1170864, 2019 WL 6974629 (Ala. Dec. 20, 2019),
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`the Alabama Supreme Court found sufficient minimum contacts from defendants’ alleged
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`discharges of toxic chemicals into their own industrial wastewater, which travelled to a treatment
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`center that the manufacturers knew ineffectively treated the water, which entered into a river
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`system that subsequently contaminated municipalities' downstream water sources in Alabama.
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`The Court found that “[s]uch alleged conduct on the part of the remaining defendants in relation
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`to Alabama is not random, fortuitous, or attenuated, regardless of the distance the chemicals
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`traveled to reach the sites in Alabama where the injuries occurred.” (Id. at 15.) The Court ruled
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`that “[u]nder this factual scenario, the physical entry of the pollution into Alabama’s water
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`source creates the relationship among the remaining defendants, Alabama, and the actions.” Id.
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`(internal citations and quotations omitted).
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`Utah has found no case that supports Harrison’s argument that a defendant that causes a
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`spill of toxic chemicals upstream is immune from the specific jurisdiction of the downstream
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`state impacted by the pollution. Harrison cites none in its Motion. Personal jurisdiction does not
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`depend on an arbitrary distance of a source of pollution to a state line. Instead, Harrison avoids
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`addressing any of the cases cited in Utah’s oppositions to its first two motions to dismiss.
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`Case 1:18-cv-00319-WJ Document 506 Filed 11/16/20 Page 16 of 24
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`Harrison contends that all the acts described above were aimed solely at the State of
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`Colorado. But Harrison has not controverted the well-pleaded facts that Harrison was aware of
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`the risks involved in the work it performed and the observations and judgments it made about
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`conditions at the Gold King site—including, as described in the ERRS contract task order:
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`“Conditions may exist that could result in a blow-out of the blockage and cause a release of large
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`volumes of contaminated mine waters and sediment from inside the mine, which contain
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`concentrated heavy metals.” (FAC at ¶ 37.) Indeed, Harrison’s proffered declarations describe
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`how it altered its original plans in an attempt to address this risk, having found the amount of
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`water behind the blockage “was likely greater than what Harrison and ER were prepared to
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`safely handle or treat.” (Dkt. 41-4 at ¶ 13.)
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`Harrison cannot plead ignorance as to the laws of gravity and hydrology. In a Blowout, a
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`risk Harrison was indisputably aware of, there was only one place for the toxic mine waste go—
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`downhill into Cement Creek, and from there into the Animas River, which flows into the State of
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`New Mexico, the Navajo Nation, and then into the State of Utah. (FAC at ¶ 1.) As an allegedly
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`“experienced and expert mine services subcontractor” (Dckt. 41 at 3), Harrison was well aware
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`of the consequences should its conduct lead to a Blowout. Just as the downstream communities
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`stood to benefit from Harrison’s intentional acts if they were performed without negligence (e.g.,
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`by remediating ongoing seepage from the Gold King Mine), those communities were likewise
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`directly in harm’s way when Harrison’s intentional acts were performed negligently and led to
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`the Blowout. Dudnikov, 514 F.3d at 1078 (“actions that ‘are performed for the very purpose of
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`having their consequences felt in the forum state’ are more than sufficient to support a finding of
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`purposeful direction under Calder.”) (quoting Finley v. River North Records, Inc., 148 F.3d 913,
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`Case 1:18-cv-00319-WJ Document 506 Filed 11/16/20 Page 17 of 24
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`916 (8th Cir. 1998)). These downstream communities were therefore the “focal point” of
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`Harrison’s conduct. Dudnikov, 514 F.3d at 1074; Calder, 465 U.S. at 789.
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`Thus, Harrison knew that a release of toxic mine water into a tributary of the Animas