New Mexico sues Colorado over Gold King Mine spill

• The lawsuit alleges Colorado's policies and practices led to the August 2015 mine spill.
• New Mexico wants reimbursements for the costs of dealing with the disaster and for future cleanup.
• The complaint claims Colorado fought against a Superfund designation for the mine, fearing it would affect tourism.
• Colorado Attorney General Cynthia Coffman says she has "done what I can" to resolve the matter without litigation.

FARMINGTON — The state of New Mexico has filed a lawsuit against the state of Colorado in U.S. Supreme Court, adding to a string of legal actions in response to the Gold King Mine spill.

New Mexico Attorney General Hector Balderas filed the complaint on Monday, alleging that Colorado’s policies and practices led to the Aug. 5 incident. In May, Balderas' office filed similar lawsuits against the U.S Environmental Protection Agency and two mining companies.

The case against Colorado focuses on the state’s attitude toward the threat that abandoned mines pose to downstream communities. The Gold King Mine spill north of Silverton, Colo., occurred when a crew from the EPA working to address wastewater seepage accidentally released 880,000 pounds of heavy metals into the Animas River.

New Mexico is demanding reimbursements for the costs incurred during the emergency and for cleanup efforts moving forward. The complaint also calls for Colorado to claim partial responsibility for the spill.

"It was Colorado’s permitting process that ultimately failed," said Tania Maestas, New Mexico's Deputy Attorney General for Civil Affairs. "It was a complete catastrophe that flowed downstream."

The lawsuit points to a 1996 agreement between Colorado and the Sunnyside Gold Corp., a major mining company in the Bonita Peak Mining District outside Silverton, that allowed the mining company to plug leaking mine shafts, rather than operate expensive water treatment plants. This caused wastewater to build inside abandoned tunnels, eventually spilling out of sites that are higher in elevation, according to the complaint.

These new sources of seepage garnered the attention of the EPA, which in 2011 proposed designating the mining district outside Silverton, Colo., as a Superfund site to spur cleanup efforts. According to the complaint, however, Colorado fought the designation due to its negative connotations, "choosing instead to protect the local tourism and skiing economy."

"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," the complaint states.

The lawsuit also takes issue with Colorado’s plans moving forward.

"It’s the response that’s equally, if not more, frustrating," said Ryan Flynn, secretary of the New Mexico Environment Department.

Flynn said Colorado has focused on the impacts to recreation and tourism, rather than addressing the needs of downstream stakeholders in New Mexico. He said the move to sue is a last resort, but efforts to communicate outside of court have failed to produce results.

Colorado’s Attorney General Cynthia Coffman, however, expressed concern that the lawsuit will cost unnecessary amounts of time and money.

"I have done what I can within the bounds of my power and authority as Attorney General to resolve this matter without litigation," Coffman said in a statement on Wednesday. "It could take years, even decades, to resolve this."

Flynn said he thinks New Mexico has a strong case, though, and hopes that it will prompt action.

"Our job is to protect New Mexico," he said. "All we want is to start getting results."

Flynn added that he is open to further discussion if Colorado chooses to rethink its response. He said the issue lies in the state government, not with regional officials north of the state border.

Kim Carpenter, San Juan County’s executive officer, echoed this sentiment. He said he has worked well with county officials in Colorado, but doesn’t agree with how higher-ups in Denver have handled the situation.

"At times, it seems the state doesn’t think this is a big deal," Carpenter said.

The gravity of the situation, however, is one of the main points that New Mexico has consistently argued. Flynn said the mine spill caused immense economic and environmental damage and will continue to pose problems in the future.

"We want communities to be compensated for their losses," Flynn said. "When people think about the Four Corners, I don’t want the image to be a yellow river."

The lawsuit seeks restitution for the financial damages suffered in the wake of the spill, including declines in tourism and crop losses for farmers.

Maestas said the case against Colorado doesn’t specify a dollar amount. She said the federal tort claim against the EPA asks for $154 million, and it would be up to the EPA to determine how much Colorado would pay.

As the case moves forward, Maestas said she doesn’t expect a negative impact on partnerships between the states.

"Governmental relations should continue," she said. "This shouldn’t have an effect."

Brett Berntsen covers government for The Daily Times. He can be reached at 505-564-4606.