United States District Court, D. Nevada
For Diamond X Ranch, LLC, Plaintiff: Brad M. Johnston, LEAD ATTORNEY, Peri & Sons Farms Inc, Yerington, NV; James J. Dragna, LEAD ATTORNEY, Bingham McCutchen LLP, Los Angeles, CA; John Paul Schlegelmilch, Law Offices of John P. Schlegelmilch, Ltd., Yerington, NV.
For Atlantic Richfield Company, Defendant: Adam S Cohen, Gail Leslie Wurtzler, LEAD ATTORNEYS, Davis Graham & Stubbs LLP, Denver, CO; Jonathan W. Rauchway, LEAD ATTORNEY, PRO HAC VICE, Denver, CO; Robert A Dotson, Laxalt & Nomura, Ltd, Reno, NV.
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
(Motion to Dismiss the Fifth, Sixth, Seventh, and Eighth Claims -- dkt. no. 27.)
Before the Court is Defendant Atlantic Richfield Company's Motion to Dismiss the Fifth, Sixth, Seventh, and Eighth Claims (dkt. no. 27) (" the Motion" ). The
Court has also reviewed Plaintiff Diamond X Ranch, LLC's opposition (dkt. no. 31), and Defendant's reply (dkt. no. 43). For the reasons discussed below, the Motion is granted in part.
Plaintiff owns approximately 1700 acres of land in Douglas County, Nevada, and Alpine County, California (" the Property" ). (Dkt. no. 1 ¶ 31.) Plaintiff alleges that the Property has been contaminated and rendered unusable by acid mine drainage (" AMD" ) flowing from the Leviathan Mine in Alpine County, California (" the Mine" ). ( Id. ¶ ¶ 13, 15, 32-34.) Between 1953 and 1962, Anaconda, Defendant's wholly owned subsidiary, owned and operated the Mine as an open-pit sulfur mine. ( Id. ¶ 14.) No entity has operated the Mine since 1962. ( Id. ¶ 14.)
In 1997, the United States Environmental Protection Agency (" EPA" ) began to take action at the Mine under the Comprehensive Environmental Response, Compensation, and Liability Act (" CERCLA" ). ( Id. ¶ ¶ 19-20.) EPA listed the Mine on the National Priorities List in 2000, and identified Defendant and the State of California as potentially responsible parties. ( Id. ¶ 22.) In that role, EPA has required Defendant to carry out remedial actions, including performing a Remedial Investigation/Feasibility Study (" RI/FS" ) regarding certain discharges from the Mine. ( See dkt. no. 28-2 ¶ ¶ 24, 50; dkt. no. 28-3 at 32-47.) Despite these and other removal efforts, AMD continues to affect the watershed surrounding the mine. (Dkt. no. 1 ¶ ¶ 28-30.) In this action, Plaintiff brings ten (10) claims to remedy contamination on the Property caused by AMD; Defendant moves to dismiss four (4) claims involving water pollution and diversion.
Claims 5 and 6 involve alleged violations of the Clean Water Act (" CWA" ), 33 U.S.C. § 1311. ( Id. ¶ ¶ 67-83.) In Claim 5, Plaintiff alleges that Defendant has discharged pollutants into the Leviathan, Aspen, and Bryant Creeks in violation of the CWA for " at least 41 years, commencing in 1972 and continuing to the present."  ( Id. ¶ ¶ 75-76.) Plaintiff alleges that the discharges originate, in part, from five (5) evaporation ponds constructed by the Lahontan Regional Water Quality Control Board as part of a Pollution Abatement Project that the California Water Resources Control Board approved in 1983, before EPA became involved in 1997. ( See id. ¶ ¶ 16-18, 74.) Plaintiff also identifies six (6) other sources of discharge, including the Adit Drain, the Pit Underdrain, the Channel Underdrain, the Delta Seep, the Aspen Seep, and " known and unknown cracks and fissures." ( Id. ¶ ¶ 24-27.) Discharges from these sources flow through a series of direct discharges, seeps, and groundwater before reaching creeks that lead to the Property. ( Id. ¶ 28.) Citing the same sources of discharges, Plaintiff alternatively alleges in Claim 6 that if Defendant has permits for the Mine, then Defendant necessarily violates the terms of those permits by emitting AMD. ( Id. ¶ ¶ 81-82.)
Claims 7 and 8 involve state and common law allegations. In Claim 7, Plaintiff alleges that Defendant violates Nevada's Water Pollution Control Act (" NWPCA" ), NRS § 445A.465, by discharging pollutants into Bryant Creek, a navigable water in Nevada. ( Id. ¶ ¶ 84-93.) Plaintiff alleges that the same discharges noted in its CWA claims give rise to its NWPCA claim.
( See id. ¶ ¶ 74, 88.) Finally, in Claim 8, Plaintiff alleges that the evaporation ponds wrongfully divert water to which Plaintiff has a ...