Mine Fight

Three summers ago, Beverly Maxwell watched it all wither—every row of white Indian corn, cucumbers, tomatoes, squash and peppers, and a new field of alfalfa she'd planted. Maxwell farms in Shiprock on land she inherited through her maternal clan, the name of which often translates to "the water flows together people."

Her crops died after a spill upriver at the Gold King Mine in Colorado flooded the Animas and then San Juan rivers with millions of gallons of acid mine drainage, staining the river orange and spiking heavy metals concentrations. Water intakes for drinking water and irrigation were shut off in three states and two sovereign tribal nations. Tanks of water provided for crops were from an oilfield company and rumored to be contaminated with residual oils. She didn't use it, and doesn't know anyone who did. Instead, "everything just dried up," she says. "There were attempts to try to save it, but it was just too labor-intensive."

Now, she and other Navajo farmers in New Mexico say they are still waiting for compensation from the US Environmental Protection Agency and contractors who caused the spill to pay for that lost harvest. Individual Navajo tribal members, as well as officials in New Mexico and Utah and the Navajo Nation, have all filed suit against the EPA, and the agency has responded with motions to dismiss their cases.

"It's that much more unfair, on top of something that we had no control over," Maxwell says.

If the EPA wins, New Mexico won't see $130 million sought for long-term monitoring and run-off preparedness planning for ongoing risks to public health and the environment. The EPA is also fighting a lawsuit filed by 300 Navajo Nation tribal members, who are claiming a rough cumulative $75 million in damages.

Gold King had presented a long-brewing problem, and that's what the EPA sought to address. An abandoned mine access tunnel had filled with water behind collapsed material, the agency's website tersely explains, when excavations caused water to begin leaking, spilling about 3 million gallons of water into a tributary of the Animas River.

"EPA takes responsibility for the Gold King Mine release and is committed to continue working hand-in-hand with impacted local governments, states and tribes," the website continues. The federal agency says it has dedicated more than $29 million to the incident and reports reimbursing states and tribes $6.4 million as of March 2017, including more than $1 million to the Navajo Nation and $1.7 million to the state of New Mexico.

New Mexico's lawsuit argues that costs of responding to and living with the Gold King Mine spill far exceed that. Their case argues negligence began with the mining company pursuing no better solution to an acid mine drainage problem than to install a bulkhead to hold the water back. That barrier caused other nearby mine shafts to flood, and the EPA intervened in 2014 to head off a blowout. But on Aug. 5, 2015, that work crew instead triggered the blowout.

An estimated 880,000 pounds of metals washed downstream, according to the lawsuit, and some of that arsenic, lead, cadmium, copper, mercury and zinc likely settled into riverbeds, where rainfall and snowmelt could recirculate it. A year after the spill, samples taken from discolored sediment visible at homes along the Animas River tested at nearly eight times the EPA's recommended limit for lead concentrations in residential soil. New Mexico's Attorney General, Hector Balderas, is arguing the initial plume and its lingering effects post "imminent and long-term health risks" to farmers, ranchers and recreational users and New Mexico's residents.

The EPA also filed a motion to dismiss the lawsuit on behalf of individual members of the Navajo Nation in November. That suit, handled by the Santa Fe law firm Egolf, Ferlic and Harwood, argues that after the Gold King Mine spill, the plaintiffs were unable to use San Juan River water for drinking, cooking, gardening or bathing, and so had to purchase and haul water. They also watched crops wither when they couldn't irrigate their fields and lost livestock unable to graze near or drink from the river.

"The EPA made a number of promises to these individuals that they would be compensated for their losses," says Kate Ferlic, an attorney for the plaintiffs. "These 300 Navajo tribal members filed claims with the EPA, and the EPA just did nothing."

Lingering perceptions about pollution in the area impair the sale of their crops and beef, Ferlic says. Personal injury and property damages claimed range from $22,000 to $1.5 million.

"That population is truly still struggling," Ferlic says.

Cultural and spiritual connections to the land and waters of the affected rivers, the lawsuit adds, means the spill also caused "great spiritual and emotional distress."

In its motion to dismiss New Mexico's lawsuit, the EPA argues, "Granting any relief in New Mexico, within the Navajo Nation, or in Utah would conflict and interfere with EPA's exclusive jurisdiction over its ongoing response-action activities and cleanup remedies."

The state of Utah is also seeking $1.9 billion in damages, and the Navajo Nation filed a claim for $162 million. The lawsuits have been consolidated and will be heard in Albuquerque.

Balderas did not allow staff attorneys to be interviewed for this story, but issued a statement through a spokesman noting that the office believes the case "is strong and continues to push to protect our water, environment and unique culture."