Highlighting limits on pre-trial motions arguing CERCLA preemption of state common law claims, a New Mexico federal court denied a motion to dismiss plaintiffs’ tort claims arising from a 2015 release of impounded water from the Gold King Mine. See New Mexico v. EPA, Civ. No. 16-0465 MCA/LF, Memorandum Opinion and Order (D.N.M. Feb. 12, 2018). The court determined that both the State of New Mexico and the Navajo Nation had valid claims for damages under New Mexico tort law in addition to their CERCLA claims for cost recovery and injunctive relief.

The defendants include an EPA contractor that was working on remediating the former Colorado mining site when a dam holding water contaminated with heavy metals was breached, famously coloring the Animas River gold. The State of New Mexico and the Navajo Nation brought suit against the contractor, alleging nuisance, trespass, and negligence among other things. The contractor moved to dismiss the tort claims as preempted by CERCLA.

The court concluded that CERCLA did not preempt plaintiffs’ state tort claims, at least not at that early stage of the litigation, but noted that the Tenth Circuit had previously held “CERCLA’s comprehensive [natural resource damages] scheme preempts any state remedy designed to achieve something other than the restoration, replacement, or acquisition of the equivalent of a contaminated natural resource,” and that a state’s pursuit of the remedy of “an unrestricted award of money damages cannot withstand CERCLA’s comprehensive NRD scheme.” But here, the court continued, “dismissal of Plaintiffs’ state law tort claims is not appropriate, as there is no authority for concluding that the claims are preempted,” as distinguished from the remedies the Tenth Circuit addressed. The court concluded there was not yet sufficient factual development in the case to dismiss or to strike the unascertained remedy.