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«In The Supreme Court of the United States STATE OF NEW MEXICO, Plaintiff, v. STATE OF COLORADO, Defendant. MOTION FOR LEAVE TO FILE BILL OF ...»

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No. __________, Original

In The

Supreme Court of the United States
















TEL. (505) 827-6000 BJACKSON@JGDPC.COM *Counsel of Record MARCUS J. RAEL, JR.


500 MARQUETTE AVE NW, SUITE 700 ALBUQUERQUE, NM 87102 TEL. (505) 242-2228 LEGAL PRINTERS Washington DC ! 202-747-2400 ! legalprinters.com LLC,





APPENDIX – Map of Upper Animas Mining District

APPENDIX – Map of American Tunnel...... A-2 APPENDIX – Letter from New Mexico, dated January 14, 2016, Notifying Colorado of Intent to File Suit Under RCRA


LEAVE TO FILE BILL OF COMPLAINT................. 1 No. __________, Original In The Supreme Court of the United States


Plaintiff, v.





The State of New Mexico moves this Court for leave to file a Bill of Complaint against the State of Colorado. The grounds for the Motion are set forth in the accompanying Brief in Support of Motion for Leave to File Bill of Complaint.






–  –  –

1. Plaintiff State of New Mexico (“New Mexico”) is a sovereign State of the United States of America. New Mexico brings this suit in its capacity as sovereign, trustee, and parens patriae for its citizens.

2. Defendant State of Colorado (“Colorado”) is a sovereign State of the United States. Process may be served upon Colorado as provided in Supreme Court Rules 17 and 29 (service

–  –  –

3. The Court has original and exclusive jurisdiction over this controversy between two States under Article III, § 2, cl. 2 of the Constitution of the United States and 28 U.S.C. § 1251(a).

–  –  –

4. On August 5, 2015, the United States Environmental Protection Agency (“EPA”), the Colorado Division of Reclamation, Mining and Safety (“DRMS”), and EPA’s contractor breached the portal of the Gold King Mine, releasing over three million gallons of mine wastewater and 880,000 pounds of metals into Cement Creek, a tributary of the Animas River in southwestern Colorado. The garish yellow plume flowed down the Animas through Colorado and into New Mexico, where the Animas joins the San Juan River. The plume then coursed hundreds of miles through the San Juan River in northern New Mexico, the Navajo Nation, and into Utah. One week later, the contamination reached Lake Powell in Utah.

5. The plume of contamination from the Gold King Mine carried toxic metals like arsenic, lead, cadmium, copper, mercury, and zinc throughout the river systems. When the plume entered New Mexico’s waters, it caused a staggering

-2spike in metal concentrations, far exceeding federal and state drinking water standards. As the contamination flowed downstream, a substantial amount of these metals fell out of the water column and settled in the riverbeds of the Animas and San Juan. Many segments of the Animas River contain “sinks” that have temporarily captured these metals.

But rainfall, snowmelt, and other high flow events will re-suspend these metals and push them further downstream into and through New Mexico.

Contamination from the Gold King Mine release thus presents imminent and long-term health risks to New Mexico’s residents, farmers, ranchers, and recreational users of the Animas and San Juan. The contamination also threatens fish, invertebrates, plants, and the environment in New Mexico.

6. Contamination from the Gold King Mine wrought environmental and economic damage throughout the Animas and San Juan River riparian systems and severely strained New Mexico’s already stressed water and economic resources. The shocking sight of the bright yellow plume of contamination eroded the public’s confidence in the health of New Mexico’s waters. Many businesses along the riverfront lost customers; others were forced to close. Agricultural uses ground to a halt.

Potable water was hauled in by truck for humans and livestock. Tens of thousands of local residents, farmers, anglers, and tourists were denied access to the rivers. The reputation of New Mexico’s prized sport fishing and recreational waters was tarnished.

7. The immediate cause of the Gold King Mine release is not in dispute. On August 5, 2015,

-3EPA’s contractor, supervised by Colorado and EPA employees, used an excavator to dig away tons of rock and debris in front of the Gold King Mine’s portal entrance. Water had been building within the mine and seeping out of the portal for years, and Colorado and EPA officials knew the water was highly acidic and laced with metals. Colorado DRMS’s records and EPA’s work plan not only recognized that the mine was filled with acidic wastewater, but also highlighted the risk of a significant “blowout,” especially if workers attempted to dig away the blockage. Moreover, Colorado and EPA employees had been given specific instructions by EPA’s lead official at the Gold King Mine not to excavate the earthen debris blocking the portal and not to drain the mine without first performing precautionary testing and setting up equipment to contain the discharge. In fact, the lead EPA official told Colorado and EPA employees to postpone excavation until an engineer from the Department of Interior’s Bureau of Reclamation could visit the site and evaluate the risks of excavating the portal. Despite the evident dangers and explicit directions of EPA’s lead official, Colorado and EPA employees directed and allowed the contractor to dig away the blockage without taking those precautions. The environmental and economic consequences of Colorado and EPA’s decisions have been catastrophic for New Mexico’s people, environment, and economy.

8. Besides Colorado’s direct role in the Gold King Mine release, Colorado is directly responsible for the hazardous conditions that preceded the catastrophe. In 1996, Colorado entered

-4into a consent decree with Sunnyside Gold Corporation (“Sunnyside Gold”), the operator of the Sunnyside Mine, part of the same network of mines as the Gold King Mine. The consent decree allowed Sunnyside Gold to install concrete plugs—known as bulkheads—in two drainage tunnels below the Sunnyside Mine, and in the portals of several neighboring mines. Sunnyside Gold had permanently closed the mine five years earlier, but it was still operating a water treatment facility that processed wastewater from the drainage tunnels to comply with the Clean Water Act. Because the treatment facility was expensive to operate and maintain, Sunnyside Gold devised a plan to end perpetual treatment of its wastewater discharges and terminate its Clean Water Act discharge permit.

Sunnyside Gold’s “solution” was to plug the drainage tunnels so that the mine’s tunnels and workings would fill with potentially billions of gallons of water, essentially transforming the mine into an enormous wastewater storage facility.

9. In 2002, six years after it placed the first bulkhead in the American Tunnel, Sunnyside Gold signed an agreement with Colorado and a cashstrapped local company named Gold King Mines Corporation that wanted to revive mining in the area. Gold King Mines Corporation would take title to the water treatment plant and treat lingering discharges from the Sunnyside Mine, as well as water that had started to discharge from nearby mines as a result of the American Tunnel’s bulkheads. Meanwhile, Sunnyside Gold was quietly settling litigation alleging that the Sunnyside Mine was flooding another mine: the Mogul.

-5Colorado was fully aware that Sunnyside Gold’s strategy carried substantial risks, but signed-off on the plan anyway. The stated intent of the consent decree was to ensure that water quality in the Animas River would not decline if the treatment plant was closed. But after six years, water quality was not being maintained and in some respects had gotten worse. Then, in 2003, Colorado inexplicably declared that Sunnyside Gold had met all of its obligations under the consent decree, terminated Sunnyside Gold’s Clean Water Act discharge permit, and released the company’s multimillion dollar bond that was supposed to ensure the company would be held financially responsible if the plan degraded the Animas River watershed.

11. The consent decree failed in every respect. As anticipated, a vast pool of acidic and toxic water rapidly filled the Sunnyside Mine soon after the first bulkheads were placed in the drainage tunnels. But the bulkheads also caused water from the Sunnyside Mine to enter the workings of neighboring mines, including the Gold King Mine and Mogul Mine. Mines that had been virtually dry for decades started discharging hundreds of gallons of acid mine drainage each minute into the river systems. Unsurprisingly, Gold King Mines Corporation went bankrupt in 2005 and the water treatment facility was swiftly shuttered and demolished. Thus, wastewater from the Sunnyside mine pool discharged directly into the Animas River watershed without any treatment.

12. Since 2005, water quality and troutpopulations in the Animas River have declined

-6dramatically. By 2011, acid mine drainage from four abandoned mine sites at and above the former treatment plant—the American Tunnel, the Gold King, the Mogul, and the Red and Bonita—was pouring into Cement Creek at a rate of nearly 850 gallons per minute. Contamination from those mines compelled EPA to study the area for a potential Superfund cleanup. While EPA considered the problem severe enough to place it on the National Priorities List, local support and a sign-off from Colorado’s governor was also required.

Unfortunately, Colorado and San Juan County would not support Superfund listing in 2011, choosing instead to protect the local tourism and skiing economy. Besides invoking Superfund, Colorado could have pursued other options: seeking to require Sunnyside and Kinross to treat the contamination flowing from their mine, reinstating water treatment at Gladstone, or any other measures to reverse the river’s decade-long degradation. Instead, Colorado did nothing to achieve downstream water quality standards, at the expense of the entire watershed—from Durango, Colorado to Farmington, New Mexico, and ultimately Lake Powell. While Colorado refused to act, the volume of water and hydraulic pressure within the Gold King Mine continued to build, setting the stage for the catastrophic blowout on August 5, 2015.

13. Colorado’s reckless 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. Colorado authorized and allowed

-7Sunnyside Gold and its parent companies to evade their environmental responsibilities and create an enormous environmental and human health hazard by plugging the Sunnyside Mine. When the ruinous results of Colorado’s decisions became clear, Colorado did nothing to inform New Mexico of the dangers. Colorado took no action to mitigate the pollution from the mines and, in fact, refused to support EPA’s plan to place the mines on the National Priorities List. Then, understanding the highly unstable condition of the mines, Colorado— acting in concert with EPA and EPA’s contractor— triggered the Gold King Mine release and grievously polluted an interstate river that provides drinking and irrigation water for tens of thousands of people in New Mexico. The Gold King Mine release was the coup de grâce of two decades of disastrous environmental decision-making by Colorado, for which New Mexico and its citizens are now paying the price.

–  –  –

The Gold King Mine and Sunnyside Mine

14. The headwaters of the Animas River begin in the San Juan Mountains of southwestern Colorado. The confluence of three streams—Mineral Creek, Cement Creek, and the upper Animas— define the Upper Animas River Basin. The river basin contains hundreds of inactive or abandoned mines, among them the Gold King Mine, on the slopes of Bonita Peak, and the much larger Sunnyside Mine, two miles west in Eureka Gulch.

Bonita Peak and the surrounding topography is a

-8maze of faults, fissures, and fractures—both natural and manmade. See Appendix A-1.

15. The Upper Animas River Basin lies within a heavily mineralized area that was mined extensively for metals, mainly gold and silver, from the 1870s to the mid-1990s. Historic mining activities significantly increased the exposure of the mineralized rock to atmospheric conditions. This exposure increased the concentrations of metals in and the acidity of waters in the mine, creating an effluent known as acid mine drainage, which reaches surface water and sediments.1 The most common metals associated with acid mine drainage in the river basin are zinc, copper, lead, aluminum, iron, and manganese, with lesser amounts of other metals.

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