For months, and even years after the blowout at the Gold King Mine, businesses that lost money because of the pollution of the Animas River were told they would be made whole.
Now, 98 claimants have received an answer from the Environmental Protection Agency: two thirds of claims were denied.
Business owners who rely on the river’s resources were informed that economic damages lacking any claim or evidence of physical injury – such as the inability to guide rafting or fishing trips – were not authorized under federal law.
The remaining one third of claimants who did get compensation received $2,500.
EPA contractors breached a plug holding back about 3 million gallons of heavy-metal laden mine drainage on Aug. 5, 2015. The breach discolored the river, flooded the internet with images of the mustard-colored water, and shut down recreation for over a week.
Rafting companies pulled boats from the Animas River before the plume of yellow water reached Durango, irrigation ditches were forced to close and for years, fishing guides were asked whether the river was safe.
The EPA took responsibility for the spill and ultimately reached large-dollar settlements with New Mexico, Utah, Colorado and the Navajo Nation and several hundred individual plaintiffs. But 98 claimants held out.
“They told us to take our time and use our resources to prepare these claims so that they could provide restitution to the damage they caused,” said Alex Mickel, the co-owner of Mild to Wild Rafting and Jeep Tours.
Rafting businesses and fishing guiding outfits lost tens of thousands of dollars in revenue when the river was closed and in the months that followed. Long after the yellow plume had passed and the river reopened, the stigma lingered.
Initially, the Obama administration’s EPA told claimants they would not receive any compensation, citing sovereign immunity, a doctrine that bars most lawsuits against the federal government.
The decision sparked a backlash. When Scott Pruitt took over as EPA administrator under former President Donald Trump, businesses received letters indicating that the claims would be reconsidered.
“When I was appointed Administrator of the U.S. Environmental Protection Agency, I committed to review a decision by the previous administration regarding the Gold King Mine incident that left so many impacted people without any support or help from the federal government,” Pruitt wrote in a letter to Duranglers, a downtown fishing guide outfit. “The time has come for the EPA to deliver on that promise.”
By mid-2018, however, Pruitt had resigned amid swirling allegations of unethical conduct, and business owners had nothing to show for his efforts.
So it was with pessimism that David Moler, the owner of Durango Rivertrippers & Adventure Tours, opened a letter on Monday from the EPA, which had arrived by certified mail.
“While the EPA regrets the loss, the claim does not meet the standards for coverage under the Federal Tort Claims Act,” the letter read. “Accordingly, the claim is denied.”
Mickel received a similar letter.
Both declined to share the size of their claims, but said that their economic losses were many thousands of dollars.
Breakdown of the 98 administrative claims
33 were seeking damages for agricultural losses and/or livestock-related losses
22 were homeowners seeking property damages and/or diminution in property value
21 are businesses seeking lost profits
17 are individuals seeking lost wages
2 are local governments in New Mexico
3 are miscellaneous claims that don’t fall into any particular category
In an email to The Durango Herald, EPA Community Involvement Coordinator Meg Broughton declined to specify which of the 98 claims were denied. However, she said one of the most common reasons for denial was “seeking damages for ‘pure economic losses.’”
Decreased tourism or the inability to guide trips on a shutdown river falls into this category, and such claims are not authorized under the Federal Tort Claims Act, Broughton wrote.
“Say we would’ve had a dock in the river that was damaged, that they would compensate for or had it caused the flood that went through our office building that they would compensate for,” Mickel said. “In our case, shutting down the business for a couple of weeks is not something they compensate for.”
Claimants now have six months to submit challenges in federal district court. But Mickel and Moler both say they are unlikely to pursue litigation.
“I think we’re just out of luck,” Mickel said. “To sue the federal government is not something a mom and pop operation can really afford to do.”
rschafir@durangoherald.com
