What Was the Allen Environmental Lawsuit Over Gold King Mine?

The Allen lawsuit over the Gold King Mine was a federal case brought by roughly 240 Navajo farmers along the Animas and San Juan Rivers against the United States, the EPA, and the agency’s contractors after the August 2015 spill destroyed a year of their crops. Formally captioned Joe C. Allen, Jr., et al. v. United States, et al., it was folded into a multi-district litigation in federal court in New Mexico and ended in February 2023 with a $7.5 million settlement covering attorney fees tied to the EPA’s destruction of evidence. The farmers themselves received no direct compensation for their crop losses through that settlement.¹

Who the Allen Plaintiffs Were

The Allen plaintiffs were approximately 240 Navajo farmers who lived and worked along the Animas and San Juan Rivers downstream of the Gold King Mine. The case took its name from the first-listed plaintiff, Joe C. Allen, Jr. The group said the contamination cost them a year of crops and inflicted other agricultural and economic damages on families that depended on river irrigation.²

Their claims split into two tracks. Against the United States and the EPA, the farmers filed under the Federal Tort Claims Act. Against the private contractor Environmental Restoration LLC and other defendants, they brought state-law negligence claims. The suit was filed as Case No. 1:18-CV-00744 and consolidated with dozens of other cases in the MDL captioned In re Gold King Mine Release in San Juan County, Colorado, on August 5, 2015, before Chief District Judge William P. Johnson.³

The Spill Behind the Case

On August 5, 2015, an EPA contracting crew working at the Gold King Mine about ten miles north of Silverton, Colorado, used heavy equipment to excavate a collapsed portal. The crew ruptured a plug of rock and soil holding back a pressurized reservoir inside the mine. Roughly three million gallons of acid drainage loaded with lead, arsenic, cadmium, copper, and iron burst out and poured into Cement Creek, a tributary of the Animas.⁴ The orange-brown plume reached the Animas near Durango within 24 hours and moved down the San Juan into Lake Powell by August 14.⁵

A U.S. Department of the Interior report concluded the blowout could have been prevented if the crew had drilled vertically to measure wastewater levels instead of digging directly into the portal.⁵ A later congressional investigation surfaced an email in which EPA acting on-scene coordinator Hays Griswold acknowledged he “personally knew” the mine could be holding back significant water and pressure, which contradicted his public statements that “nobody expected” those conditions.⁶

The Kinross Dismissal

In April 2021, Judge Johnson dismissed the Allen plaintiffs’ claims against Kinross Gold Corporation, the parent of Sunnyside Gold. Sunnyside had operated a neighboring mine whose bulkheads were believed to have contributed to the water buildup at Gold King. The court found it lacked personal jurisdiction because Kinross’s activities were not “purposefully directed” at New Mexico in a way that caused the farmers’ injuries.²

The ruling mattered because Kinross had separately settled with the State of New Mexico for $11 million and with the Navajo Nation for $10 million. The individual Allen farmers were not parties to either agreement and received nothing from them.²

The Tenth Circuit Statute of Limitations Ruling

The state-law track against Environmental Restoration LLC ran into a further problem. On May 3, 2022, the Tenth Circuit Court of Appeals held that when state-law claims are preserved under the Clean Water Act, courts must apply the statute of limitations of the state where the pollution originated — the “point source state” — rather than the state where the case was filed.⁷

Because the mine sits in Colorado, that meant Colorado’s two-year limitations period applied to the farmers’ claims rather than New Mexico’s three-year period. The panel, in an opinion by Judge Carson joined by Judge McHugh and Senior Judge Lucero, reasoned that letting different states’ periods apply based on filing location would create “debilitating uncertainty” and undercut the Act’s uniformity. The case went back to the district court under the shorter Colorado clock.⁸

The EPA’s Destroyed Evidence

While the substantive claims narrowed, a separate dispute inside the MDL reshaped the case. Plaintiffs discovered that electronically stored information from the personal devices of on-scene coordinators Griswold and Steve Way had been lost. According to the court, a backup of Griswold’s iPhone became inaccessible because the EPA “forgot” the password; his iPad was reset to factory settings, wiping out field photos; Way’s iPad was similarly locked out; and roughly 800 photographs and 120 documents from Griswold’s EPA-managed OneDrive account went missing.⁹

In an August 2021 order, Judge Johnson granted the sanctions motions in part. He allowed plaintiffs to introduce evidence of the spoliation at trial and awarded reasonable attorney fees for investigating the destruction. He deferred deciding whether the jury should receive an adverse inference instruction until an evidentiary hearing could test whether the destruction was intentional. The sanctions ruling also delayed the government’s motion to dismiss on sovereign immunity grounds, because the missing records were potentially relevant to whether the EPA’s conduct qualified as a protected discretionary function.⁹

The $7.5 Million Settlement

On February 16, 2023, the United States settled with the Allen plaintiffs. The government agreed to pay $7.5 million to the plaintiffs’ counsel under the Equal Access to Justice Act, specifically as attorney fees related to the spoliation of evidence. Neither side admitted liability. In exchange, the Allen plaintiffs released all claims against the United States and the EPA arising from the Gold King Mine release and agreed to dismiss their Federal Tort Claims Act claims with prejudice.¹

The stipulation of dismissal was filed on March 15, 2023, and Judge Johnson formally dismissed the case on May 16, 2023. In June, the court relieved the Allen plaintiffs of their cost obligations after a joint motion from the parties.³

The same day the Allen deal was announced, the government also settled with the McDaniel plaintiffs, a separate group of nine individuals, for $200,000 in attorney fees, likewise tied to the spoliation sanctions.¹⁰

What the Settlement Did Not Cover

The $7.5 million paid the lawyers for litigating the evidence-destruction issue. It did not compensate the individual Navajo farmers for their crop losses or for the disruption of their livelihoods. The distinction between fee recovery and substantive damages is the core of what the Allen settlement is, and is not: the farmers whose fields went unwatered in 2015 did not receive restitution for those harms through this case.

How the Allen Outcome Compared to Other Gold King Settlements

The Allen resolution stands in sharp contrast to the sums governments and the tribe recovered from the same events. The Navajo Nation, as a sovereign, settled with the EPA for $31 million in June 2022, on top of a $10 million settlement with Sunnyside Gold, for total tribal recoveries of at least $41 million.¹¹¹²¹³ Sunnyside Gold and Kinross entered a $45 million federal-state settlement with the United States and Colorado in January 2022 related to the Bonita Peak Superfund site.¹⁴ Colorado itself settled natural resource damages claims for $5 million in May 2023.¹⁵

Those funds went to state agencies and to the tribal government for response costs, natural resource restoration, and water quality work. They were not distributed to the individual farmers in the Allen case, and the Allen plaintiffs were not parties to those agreements. By June 2023, the last stipulations of dismissal in the MDL had been filed, and the EPA reported that all lawsuits against the United States over the Gold King Mine release had been settled.¹⁶

1
U.S. EPA. Gold King Mine EPA Allen Plaintiffs Settlement
2
Navajo Times. Judge Dismisses Farmers Case Against Mining Company They Allege Helped Cause Gold King Spill
3
CourtListener. In Re Gold King Mine Release in San Juan County Colorado
4
Colorado Encyclopedia. Gold King Mine Spill
5
U.S. Bureau of Reclamation. Gold King Mine Report
6
SME. Investigation Finds That EPA Coordinator Knew of Dangers at Gold King Mine
7
U.S. Court of Appeals for the Tenth Circuit. Allen Jr et al v Environmental Restoration
8
U.S. Court of Appeals for the Tenth Circuit. Allen v Environmental Restoration LLC Opinion
9
U.S. District Court for the District of New Mexico. In Re Gold King Mine Release Spoliation Order
10
U.S. EPA. Gold King Mine EPA McDaniel Plaintiffs Settlement
11
Hueston Hennigan. Navajo Nation Recovers More Than 40 Million
12
Governor of New Mexico. Gov Lujan Grisham Announces Settlement With US in Gold King Mine Litigation
13
Source NM. New Mexico to Get Final Settlement Dollars for Gold King Mine Spill
14
U.S. Department of Justice. Federal Government and State of Colorado Settlement With Mining Companies
15
CBS News Colorado. State Reaches Settlement With Federal Agencies Over Gold King Mine Spill
16
U.S. EPA. Gold King Mine Litigation Settlements