On Tuesday, the United States and the U.S. Environmental Protection Agency (EPA) responded to requests that it should receive sanctions because of evidence the government allegedly hid relating to the 2015 Gold King Mine release of hazardous substances.
The first motion requesting sanctions was filed on May 4 by the Navajo Nation and New Mexico, two plaintiffs attempting to recover funds they spent in cleaning up the spill. The plaintiffs cited six sources of evidence which were purportedly concealed from the plaintiffs and the court related to documentation from two EPA employees who were on-scene coordinators, Hays Griswold and Steve Way.
Sunnyside Gold Corporation (SGC), a mining company, asked the court to impose sanctions on the government defendants shortly after the plaintiffs on May 24. As a defendant, SGC alleged that if the complete evidence were available, the government parties would be liable for more of the damages and that the move to hold back evidence caused the lawsuit to be prejudiced against SGC.
In the federal parties’ response filed on June 1, which specifically addressed the plaintiffs’ motion and not the motion filed by SGC, the U.S. and the EPA claimed that the EPA took reasonable steps to preserve evidence and that they disclosed that the evidence was lost as soon as they learned that it was potentially available, contradicting the claims presented by the plaintiffs. The defendants also alleged that they had taken measures to preserve and recover the information and have included the information which would be found in the missing evidence through other sources, claiming that some of the missing sources were “likely duplicative.”
Because there was reportedly not any intent to hold back evidence and no prejudice, the U.S. and the EPA claimed that sanctions are unwarranted and inappropriate. The response said that “the motion is contrary to the factual record and should be denied,” citing that it made extensive efforts to provide electronically stored information (ESI) to the court and that the loss of evidence is a “minor occurrence” considering the volume of evidence that the court does have from the federal defendants.
The filing claimed that the allegations that the EPA intended to open the mine on the day of the release, which the plaintiffs alleged may have been shown in the lost documents, is unsupported. It cited that “every witness who was at the mine that day consistently testified that there was no intent to open the mine; the goal was to assess next steps by removing loose material in front of and above the adit blockage.” The government alleged that the plaintiffs are attempting to preclude evidence already given to the court because their theory did not have any actual evidence.
“There is no evidence that Federal Parties intended to deprive other parties of ESI. EPA took proactive and reasonable steps to preserve ESI, engaging in an extensive preservation effort. The loss of unique and material ESI seems highly unlikely, given the tremendous amount of discovery provided,” the opposition concluded.
The federal defendants are represented by the U.S. Department of Justice and attorneys with the EPA. 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. SGC is represented by Crowley Fleck PLLP.