SANTA FE – New Mexico is suing its upstream neighbor, contending Colorado was too lax in its oversight of groundwater contaminated by decades of mining and should be held responsible for the fallout of last year’s Gold King Mine spill.
The lawsuit, filed in the U.S. Supreme Court this week by Attorney General Hector Balderas and outside attorneys hired by the state Environment Department, seeks reimbursement for all costs – including “stigma” damages – connected to the mine spill, in which more than 3 million gallons of toxic waste was spewed into a tributary of the Animas River and flowed into New Mexico.
“The Gold King Mine release is the result of two decades of disastrous environmental decision-making by Colorado, for which New Mexico and its citizens are now paying the price,” Balderas said in a statement.
Meanwhile, Environment Secretary Ryan Flynn described the lawsuit as a last resort, saying his agency’s attempts to negotiate a deal with Colorado officials have been unsuccessful.
“We can’t continue to wait,” Flynn told the Journal . “At some point, we have an obligation with the citizens we’re serving to move forward.”
Specifically, the lawsuit alleges a Colorado department signed off on a plan to block the tunnels of a closed mine in the same network as the Gold King Mine with concrete plugs – or bulkheads – to try to block acidic wastewater from escaping, the lawsuit alleges.
The plan essentially turned the mine into an “enormous wastewater storage facility” and Colorado environment officials were aware of the possible risk of a blowout, the suit claims.
“It’s going to be very difficult for Colorado to explain why they ignored these warnings,” Flynn said.
The August 2015 mine spill happened when a crew hired by the federal Environmental Protection Agency accidentally breached a containment wall, releasing a yellow-orange plume of waste out of the Gold King Mine, north of Silverton, Colo.
The discharge eventually carried more than 888,000 pounds of heavy metals – such as lead, arsenic, copper and mercury – into New Mexico. It forced municipal and community water systems and irrigation ditches in San Juan County to stop drawing water from the Animas and San Juan rivers for more than a week after the spill and raised concerns about lasting damage to blue-ribbon trout waters.
In the 10-plus months since the Gold King Mine spill, state and tribal governments have been keeping a close eye on contaminant levels in the rivers, due largely to the threat of contamination after rainstorms or heavy runoffs that can churn up sediments in the water.
In addition to the lawsuit against Colorado, New Mexico has also filed a lawsuit in federal court against the EPA and the owners of the Gold King Mine that seeks more than $136 million in damages. That amount would include money to pay for economic losses the state attributes to the mine spill, specifically in the tourism, recreation and agriculture sectors.
New Mexico is no stranger to lawsuits with its neighbors. The state has also been embroiled in a lengthy legal battle with Texas that hinges on whether groundwater pumping in southern New Mexico is draining the Rio Grande and depriving downriver water users in the Lone Star State from their rightful share.
That lawsuit also was filed with the U.S. Supreme Court, as is typically the case when one state sues another.
In the Wednesday interview, Flynn acknowledged interstate lawsuits are typically not resolved quickly and said there’s a good likelihood the case could still be pending when Gov. Susana Martinez’s second term expires at the end of 2018.
“Anytime you go to court, there’s some risk,” Flynn said, adding that New Mexico officials are still open to negotiating with Colorado and hopeful the case might be resolved out of court.
Both mine spill lawsuits are being driven by Attorney General Balderas, a Democrat, working with the administration of Martinez, a two-term Republican.
This week’s lawsuit claims Colorado’s actions have “prejudiced New Mexico’s economy, finances and natural resources, and have injured the health, comfort, safety and property of New Mexico’s citizens.”
Although New Mexico officials have taken a hard-line approach to the Gold King Mine spill fallout, some Colorado officials have said their testing shows no risk to human health from the contaminants.
Colorado Gov. John Hickenlooper even drank water from the Animas River just days after the spill – after adding an iodine tablet to purify the water – in an attempt to downplay environmental concerns.
“If that shows that Durango is open for business, I’m happy to help,” Hickenlooper said, according to the Durango Herald.