A motion by the Navajo Nation and New Mexico in a lawsuit regarding the 2015 Gold King Mine Release alleged that the United States and the Environmental Protection Agency (EPA) intentionally got rid of six unique sources of evidence and concealed this from the plaintiffs and the court.
The plaintiffs asked the New Mexico District Court to sanction the defendants for “spoliating evidence in violation of a Court Order and with the intent to deprive the Sovereign Plaintiffs of information that should have been preserved.”
Specifically, New Mexico and the Navajo Nation claimed that documentation and communications from two EPA witnesses, Hays Griswold and Steve Way who were On-Scene Coordinators at the time of the 2015 Gold King Mine blowout, were destroyed. They alleged that the information on Griswold and Way’s EPA-issued devices were destroyed before May 2016 but that the defendants did not know about this until October 2020, two months before the end of discovery.
This alleged destruction of evidence was done despite the U.S. and EPA entering a preservation order in the case in 2016, which they knew they could not comply with because evidence was already spoliated. The plaintiffs also claimed that more evidence was destroyed after this order, including almost 1,000 documents in Griswold’s files “which inexplicably went ‘missing’ in August 2020.”
New Mexico and the Navajo Nation alleged that the destroyed documents would give direct evidence about the events that led to the blow out which caused significant environmental damage in multiple states and would show that the EPA was negligent.
They alleged that the evidence could support the U.S. Bureau of Reclamation’s theory that Griswold, rather than preparing the mine for a review and accidentally opening the mine, was actually attempting to open the mine. However, the plaintiffs said because of the destruction of evidence, the court cannot corroborate this theory.
The plaintiffs explained that since efforts to negotiate and reach an agreement outside the court with the EPA and the U.S. were not successful, they were led to seek these sanctions.
Utah, another state involved in the lawsuit, settled with the EPA and the U.S. in August 2020 for $3 million which will be used for clean water projects in the state.
Last week, the court dismissed claims against Kinross Gold Corporation, a company previously involved in the mine, by various individuals who lived along the rivers polluted by the mine breach, including some members of the Navajo Nation.
New Mexico is represented by its Attorney General’s Office and Kelley Drye & Warren. The Navajo Nation is represented by its Department of Justice and Hueston Hennigan LLP. The U.S. and EPA are represented by the U.S. Department of Justice.
