In re Gold King Mine Release in San Juan Cnty.
In re Gold King Mine Release in San Juan Cnty.
2021 WL 3207351 (D.N.M. 2021)
March 20, 2021

Torgerson, Alan C.,  Special Master

Special Master
Third Party Subpoena
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Summary
The Special Master denied the Federal Parties' Motion to Quash the Deposition Subpoena issued by Sunnyside Gold Corporation to Mathy Stanislaus. The court found that Mr. Stanislaus had written statements in an official EPA blog, attended a meeting with local officials, finalized the Technical Evaluation done by the Department of Interior, and reviewed and gave the final approval of the Best Practices for Preventing Sudden, Uncontrolled Fluid Mining Waste Releases report. All of this information is important to the case, as it is essential to the defenses of Sunnyside Gold.
Additional Decisions
IN RE: GOLD KING MINE RELEASE IN SAN JUAN COUNTY, COLORADO ON AUGUST 5, 2015
This Document Relates to All Cases
No. 1:18-md-02824-WJ
United States District Court, D. New Mexico
Filed March 20, 2021

Counsel

Andrew Homer, Pro Hac Vice, Kelley Drye & Warren, LLP, La Jolla, CA, Cholla Khoury, New Mexico Attorney Genderal's Office, Santa Fe, NM, Jennifer Barks, Lana Rowenko, William James Jackson, John D.S. Gilmour, Kelley Drye & Warren LLP, Houston, TX, Samuel C. DeFillippo, Marcus J. Rael, Jr., Robles, Rael and Anaya, P.C., Albuquerque, NM, for State of New Mexico.
Andrew K. Walsh, Pro Hac Vice, Joseph Crusham, Lauren Johnson, Moez M. Kaba, Pro Hac Vice, Hueston Hennigan LLP, Los Angeles, CA, John C. Hueston, Pro Hac Vice, Hueston Hennigan LLP, Newport Beach, CA, Paul Spruhan, Navajo Nation Department of Justice, Window Rock, AZ, Tanner Camp, Armstrong Teasdale LLP, Salt Lake City, UT, for Navajo Nation.
Jeffrey Scott Trespel, Will Ferguson & Associates, Adrian O. Vega, Buckingham Barrera Law Firm, Albuquerque, NM, Mark A. Cox, Egolf+Ferlic+Martinez+Harwood LLC, Santa Fe, NM, for Joanna McDaniel, Ronnie McDaniel, Carolyn Emerson, Joseph Emerson, Michael Pratt, Deborah Pratt, Danny Booher, Rosemary Hart, Georgia Wilson.
Peter Hsiao, Pro Hac Vice, King & Spalding LLP, Los Angeles, CA, Spencer E. Austin, Utah Attorney General's Office, Murray, UT, for State of Utah.
Brian F. Egolf, Jr., Katherine M. Ferlic, Egolf, Ferlic & Harwood, LLC, Mark A. Cox, Egolf+Ferlic+Martinez+Harwood LLC, Santa Fe, NM, for Joe C. Allen, Carol Anagal, Cheryl Armenta, Duane Aspaas, Wilford Atson, Hilda Baldwin, Aaron Barber, Daisy Barber, Louise Henderson, Paul Barber, Roger Barber, Andy Begay, Arlene Begay, Bernita Begay, Betty Begay, Caroline Begay, Charlene Begay, Elizabeth Begay, Helen Begay, Jacqueline L. Begay, Jonah Begay, Judy Begay, Mae Begay, Marylita Begay, Sandra Begay, Virginia Begay, Wayne Begay, Etta Begaye, Richard Begaye, Laurence Bekise, Robert Bekise, David Ben, Timothy Ben, Ernest Benally, Harry Benally, Jeannie Benally, Max Benally, Nina Benally, Rose Benally, Steve Benally, Susan Benally, Wanda Benally, Shirley Bia, Vernida Bissonette, Lorraine Black, Mable Black, Taylor Black, Tom Blackhorse, Annie BlueEyes, Scott Brady, Andrew Brewster, Darlene Bronston, Jackson Bunny, Sammy Charley, Wilma Charley, Darrell Clah, Benjamin Clark, Stella Cly, Doris Coolidge, Jimmie Coolidge, Wilbert Cowboy, Alfred Curley, Don Curley, Melvin Curley, Martha Curtis, Kee Dan, Rachel Dee, Davidson Devore, Lucy Dick, Marlene Dobey, Elton Dodge, Susie Dodge, Tommy Draper, Bessie Duncan, Cecil Duncan, Thurston Eddie, Herman Enoah, Mary Enoah, Vernese Esplain, Allen E. Etsitty, Bertha A. Etsitty, Huron Etsitty, Janice Frank, Sarah Frank, Gene Fred, Loren Garnanez, James Grant, Julie Harrison, Margaret Harrison, Sherrell G. Mesa, Hubert Harwood, Anita Hayes, Perry Hayes, Robert Hayes, Wallace Hayes, Freddie Hobson, Joanne Holliday, Tom Horse, Daisy Houser, Helen Howard, Herman Hunt, Irita James, Garry Jay, Mary Jay, Daniel Jim, Darrell Jim, Fannie Marie Jim, Charley Jim, Geneva Jim, Jonah Jim, Norman Jim, Sheila Jim, Virginia Jim, Elsie Joe, Lita Joe, Frank John, Anne Johnson, Harrison Johnson, Jessie Johnson, Jean Jones, Lena J. Jones, Raymond Jones, Renita T. Jones, Theron Jones, The Estate of Leon Jones, Wesley Jones, Darren Kee, Juanita Kee, Max Kellywood, Francine Kiefert, Florence B. King, Marlena King, Terri Lameman-Austin, Harry Lane, Gloria Lane, Ada Lansing, Emerson Lee, Leonard Lee, Marie Lee, Roselyn Lee, Rowena Littlehat, Carmelita Lowe, Cynthia Madison, Mary Ann Manygoat, Esther Mark, Gerald Maryboy, James Mason, Rosina T. Merritt, Ron Miller, Laura M. Mitchell, Marilyn Mustache, Anthony Nabahe, Betty Jones Nakai, Harry S. Nakai, Jimmy Nakai, Byron Nelson, Tonita Nelson, Ruth Nez, Annie Oldman, Raymond Oldman, Harry Peshlakai, Thomas Pete, Raymond Pettigrew, Charles Phillips, Charles D. Phillips, Dorothy Phillips, Mary J. Phillips, Shandie Pioche, Sarah Police, Esther Reddoor, Cecilia Wallace, Phillip Rentz, Perfina Rockwell, Ronnie Ross, The Estate of Wayne Saltwater, Larry B. Sam, Bobby Sandoval, Lula Sandoval, Susie Scott, Roger Shaggy, Roger Sherman, Bessie Shorthair, David Shorthair, Wade Shorthair, Ruby B. Silas, Christina Silentman, Roger L. Simpson, George L. Sisco, Sarah Slowman, Eric Smallcanyon, Teddy Smallcanyon, Rose Ann Tanner, Bessie Tesswood, Lewis Todacheene, Herbert Todacheenie, Irene Todacheenie, Charlie N. Todacheenie, Dorothy Todechine, Roselyn Toledo, Helen Tom, Sarah A. Tony Benally, Mary Tso, Ivan Tyler, Thomas T. Tyler, Phyllis Valdez, Anna Vigil, Johnson Washburn, Roselyn Watchman, Lenora Williams, Herbert Willie, Lena Willie, Raymond G. Willie, Esther A. Yanito, Alice D. Yazzie, Calvin Yazzie, Earl D. Yazzie, Irvin Yazzie, Jay Yazzie, Lorenzo Yazzie, Marie Yazzie, Susie Yazzie.
Mark A. Cox, Egolf+Ferlic+Martinez+Harwood LLC, Santa Fe, NM, for Riley Garnanez, Laverne Nakai, Ramona Pettigrew, Gary Smith, Jerome Smith, Eva Tso, John Tso.
Alan D. Greenberg, US Department of Justice, Denver, CO, Albert Lai, John A. Bain, Michael Williams, USDOJ, Brian H. Lynk, US Department of Justice Environmental Defense Section, Meghan Elizabeth Greenfield, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for United States Environmental Protection Agency.
Brian H. Lynk, US Department of Justice Environmental Defense Section, Meghan Elizabeth Greenfield, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Gina McCarthy.
E. Blaine Rawson, John A. Adams, Ray Quinney & Nebeker, Salt Lake City, UT, Terry Farmer, Moses, Dunn, Farmer & Tuthill, Albuquerque, NM, David R. Rutan, Pro Hac Vice, Michael L. Smith, Pro Hac Vice, Rory Miller, Pro Hac Vice, Terry D. Avchen, Pro Hac Vice, Glaser Weil Fink Howard Avchen & Shapiro LLP, Peter Sheridan, Pro Hac Vice, Christensen, Weil, Fink, Howard LLP, Los Angeles, CA, for Environmental Restoration, LLC.
Bradford C. Berge, Jules Elese Angelley, Pro Hac Vice, Holland & Hart LLP, Santa Fe, NM, Craig D. Galli, Steven G. Jones, Holland & Hart LLP, Salt Lake City, UT, Jill H. Van Noord, Pro Hac Vice, Holland & Hart LLP, Denver, CO, for Kinross Gold Corporation, Kinross Gold USA, Inc.
Bradford C. Berge, Holland & Hart LLP, Santa Fe, NM, Jared Michael Le Fevre, Pamela C. Garman, Pro Hac Vice, Christopher C. Stoneback, Pro Hac Vice, Jeffery J. Oven, Pro Hac Vice, Crowley Fleck PLLP, Billings, MT, Neil G. Westesen, Pro Hac Vice, Crowley Fleck PLLP, Bozeman, MT, Mark L. Stermitz, Pro Hac Vice, Crowley Fleck PLLP, Missoula, MT, for Sunnyside Gold Corporation.
Alan D. Greenberg, John Moscato, US Department of Justice, Denver, CO, Albert Lai, Caroline Stanton, John A. Bain, Michael Williams, Nicholas Morales, Ruben Gomez, Stefan Bachman, David Jonathan Hammack, Tsuki Hoshijima, U.S. Department of Justice, Brian H. Lynk, US Department of Justice Environmental Defense Section, Meghan Elizabeth Greenfield, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Roberto D. Ortega, US Attorney's Office, Albuquerque, NM, for United States of America.
Brian Molzahn, Pro Hac Vice, Hall & Evans, LLC, Darin J. Lang, Nelson Mullins Riley & Scarborough LLP, Denver, CO, Ryan P. Atkinson, Strong & Hanni, Salt Lake City, UT, for Harrison Western Corporation.
Jeffrey J. Wechsler, Louis W. Rose, Kari E. Olson, Matthew J. Armijo, Montgomery & Andrews, P.A., Santa Fe, NM, for Weston Solutions, Inc.
Lindsay A. Lovejoy, Law Office of Lindsay A. Lovejoy Jr., Santa Fe, NM, for Salem Minerals, Inc., San Juan Corp.
Alan D. Greenberg, US Department of Justice, Denver, CO, for Scott Pruitt.
Gold King Mines Corporation, Pro Se.
John Does, Pro Se.
Torgerson, Alan C., Special Master

ORDER DENYING FEDERAL PARTIES’ MOTION TO QUASH DEPOSITION SUBPOENA ISSUED BY SUNNYSIDE GOLD CORPORATION TO MATHY STANISLAUS

*1 This matter comes before the Special Master on the Federal Parties’ Motion to Quash the Deposition Subpoena issued by Sunnyside Gold Corporation to Mathy Stanislaus filed as Doc. 1033. The matter is fully briefed, and Sovereign Plaintiffs the State of New Mexico and the Navajo Nation joined in opposing the Federal Parties’ Motion. Docs. 1079, 1083, and 1104. The Special Master conducted a telephonic hearing on March 5, 2021 at which the Federal Parties, Sunnyside Gold Corporation, the State of New Mexico, and the Navajo Nation appeared and argued. The Allen Plaintiffs, the Kinross Defendants, Weston Solutions, and Environmental Restoration were also present at the hearing. Having reviewed the pleadings, exhibits, legal authorities, and the arguments, the Special Master orders that the Motion to Quash the Deposition Subpoena is denied because the deponent, while protected by the Morgan doctrine as a former high-ranking government official, has personal knowledge that Sunnyside Gold has shown is necessary to help establish its defenses and claims and is unavailable from other sources.
 
Mathy Stanislaus was initially disclosed by several parties as a witness potentially having knowledge about various claims and defenses raised in this lawsuit. He was not subpoenaed for a deposition until December, 2020, when Sunnyside Gold gave notice of its intent to depose Mr. Stanislaus in January, 2021. The Federal Parties thereupon filed this Motion to Quash the Deposition of Mr. Stanislaus. Mr. Stanislaus is a former Senate-confirmed political appointee who served as the Assistant Administrator of the EPA's Office of Solid Waste and Emergency Response from June 2009 until January 2017. The Office of the Solid Waste and Emergency Response is now known as the Office of Land and Emergency Management (OLEM), which is the acronym that will be used when referring to Mr. Stanislaus’ position. As the Assistant Administrator of OLEM, he was headquartered in Washington, D.C. and was the principal advisor to the Administrator of the EPA for matters that OLEM is responsible for, including the implementation of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Transcript of hearing March 5, 2021, 10:13-15 (hereinafter Transcript). Mr. Stanislaus held this position at the time of the Gold King Mine release that occurred on August 5, 2015. After his departure from the EPA, Mr. Stanislaus became the Director of the World Economic Forum's Global Battery Alliance, a public-private collaboration platform of over 70 organizations, and as his affidavit explains, he is particularly busy as the Global Battery Alliance has to transition to a stand-alone legal entity by April, 2021. See, Doc. 1033-2.
 
The Federal Parties have moved to quash the deposition of Mr. Stanislaus on the grounds that he is protected from a deposition because he is a former high-ranking government official, that he had no personal involvement in the Gold King Mine release prior to August 5, 2015, that he is not experienced in nor an expert in hardrock mining emergency responses, that his information about the Gold King Mine release came through staff, and that any information he may be able to provide has already been provided through the depositions of other EPA officials or through public records and would therefore be cumulative. Sunnyside Gold has argued that Mr. Stanislaus’ testimony is relevant to its defenses because the mining company has been sued by the Federal Parties in a cross-claim to recover the EPA's CERCLA response costs and for contribution in the event the Federal Parties are held liable on the Sovereign Plaintiffs’ claims.[1] The parties agree that Mr. Stanislaus had no personal knowledge of the events leading up to the Gold King Mine release. However, Sunnyside Gold argues that Mr. Stanislaus has direct personal knowledge of events subsequent to the Gold King Mine release because he participated in and was the final decision maker on the listing of the Bonita Peak Mining District Superfund Site on the National Priories List, put together the Technical Evaluation of the Gold King Mine release done by the Department of Interior, oversaw the creation of the 2017 Best Practices for Preventing Sudden Uncontrolled Fluid Mining Waste Releases report, and twice gave testimony to United States Congressional committees. Sunnyside Gold also argues that Mr. Stanislaus gave inconsistent or incomplete testimony at times which needs to be explored by it in order to establish its defenses. See, e.g., Doc. 1079-6; Transcript 30:7-11, 32:3-7.
 
*2 Federal Rule of Civil Procedure 26(b)(1) provides that parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party. The court may, however, limit the extent of discovery if the discovery sought is unreasonably cumulative or can be obtained from some other source that is more convenient, less burdensome, or less expensive. Particularly, with regard to high ranking government officials, a doctrine has been created that protects high-ranking government officials from being deposed in the absence of extraordinary circumstances, beginning with the Supreme Court case of U.S. v. Morgan, 313 U.S. 409, 61 S. Ct. 999, 85 L.Ed. 1429 (1941), and later expanded through case law. U.S. v. Wal-Mart Stores, Inc., 2002 WL 562301 (U.S.D.C. Md. March 29, 2002)(unpublished).
 
While the Morgan doctrine has not been explicitly adopted in the Tenth Circuit, the Special Master finds that generally district courts in this circuit have followed the tenets of the Morgan doctrine when considering whether to allow the depositions of high-ranking government officials. See, e.g., Tierra Blanca High Ranch High Country Youth Program v. Gonzales, 329 F.R.D. 694, 696 (D. N.M. 2019)(the “apex doctrine” which provides some protection from depositions to high-level executives and government officials “has not been addressed by the Tenth Circuit, yet it has been applied by a variety of federal district courts nationwide.”); P.J. by and through Barbara v. Utah, 2007 WL 9809168, *1 (U.S.D.C. Utah May 2, 2007)(“as a general rule, courts hold that depositions of high-ranking government officials should not be a routine part of litigation”)(unpublished).
 
Former high-ranking government officials have also been brought into the protections of the Morgan doctrine. One of the protections offered by the Morgan doctrine is to allow government officials to serve in their official capacity knowing that they will not be unduly entangled in civil litigation, both while in office and after they leave public service. U.S. v. Wal-Mart, supra, *3. By extending the protections of the Morgan doctrine to former high-ranking government officials, persons who agree to accept the burdens of public service know that they will be protected from continued participation in lawsuits in the years after their public service is done.
 
The Morgan doctrine, however, does not automatically protect a former high-ranking government official from sitting for a deposition when the discovery sought is about the personal involvement and knowledge of the former official. There are several “tests” circulating among district courts about how to apply the Morgan doctrine and its protections. For example in Federal Trade Commission v Nudge, LLC, an unpublished case from the U.S. District Court in Utah, the Magistrate Judge reviewed several similar cases and found that when district courts in this circuit consider whether to apply the Morgan doctrine to high-ranking government officials the parties seeking the deposition of the government official need to establish: 1) whether the official has first-hand knowledge about the issue being litigated; 2) whether the testimony will likely lead to the discovery of admissible evidence; 3) whether the deposition is essential to the party's case; and 4) whether the information cannot be obtained from an alternative source or through less burdensome means. 2020 WL 6827682, *2 (U.S.D.C. Utah, November 20, 2020.) In all the cases reviewed by the Special Master in which the current or former high-ranking government official was ultimately ordered to participate in discovery the key factors were whether the government official had personal knowledge and involvement in the material facts of a dispute, and whether that knowledge or involvement was essential to a party's claim or defense. U.S. v. Sentient Colors, Inc., 649 F. Supp. 2d 309, (D. N.J. 2009)(deponent Kenny played several key roles in cleanup at site demonstrating her essentiality to Defendant's defense); Energy Capital Corp. v. United States, 60 Fed. Cl. 315 (2004) (former Secretary of HUD and former HUD General Counsel had allegedly personally made threatening telephone calls which were key to party's claim of bad faith); P.J. by and through Barbara, supra, *2, (Utah Attorney General was personally involved in case and made numerous public statements that were allegedly evidence of misrepresentations made to juvenile court). In U.S. v. Wal-Mart, supra, for example, the court wrote, when analyzing the information that a government official may obtain due to their position, “there comes a point when their involvement becomes less supervisory and directory and more hands-on and personal, that it is considered so intertwined with the issues in controversy that fundamental fairness requires the discovery of factual information held by the official by way of deposition.” 2002 WL 562301, *3.
 
*3 As Mr. Stanislaus said in an email attached as Doc. 1079-3, he was the EPA official “with responsibility for contaminated site cleanup, including the Superfund Program and emergency response planning.” Sunnyside Gold emphasizes that Mr. Stanislaus’ name appeared in over 12,000 responsive documents produced in the discovery of this case and he wrote statements in an official EPA blog after the Gold King Mine release even though he states in his affidavit that had had no personal or direct knowledge of events following the release. Transcript 16: 22-24, 17:1-2, Document 1033-2, ¶ 7. Mr. Stanislaus, for example, personally attended a meeting with local Colorado, New Mexico and Native American officials and community members one month after the Gold King Mine release. At that meeting, long-term options for the Animas River Watershed (an area impacted by the Gold King Mine release), were discussed including designating the area as a Superfund National Priorities List Site. Document 1079-2. Mr. Stanislaus was the final decision-maker with respect to the listing of the Bonita Peak Mining District Superfund Site on National Priories List, a decision with legal and financial implications for Sunnyside Gold.
 
Mr. Stanislaus was also the official who finalized the Technical Evaluation done by the Department of Interior resulting from the EPA's internal review of the Gold King Mine release and reviewed and gave the final approval of the Best Practices for Preventing Sudden, Uncontrolled Fluid Mining Waste Releases report, which was dated July 2017. Doc. 1033-2, ¶¶ 7 -8. Mr. Stanislaus also gave testimony, after extensive briefings from his staff to Congressional committees on two different occasions. Docs. 1079-8, 1079-9, and 1079-6. But the issue that the Special Master finds most compelling is the “pivot” by the EPA from a message that EPA caused the spill to “this has been a long standing issue of neglect on behalf of many that EPA is trying to fix” as noted in Document 1079-7, an email sent just three days after the spill. This message is also referenced in Docs. 1079-9 and 1079-10. Sunnyside Gold persuasively argues that Mr. Stanislaus’ testimony about this pivot is critical to the mining company's defense on the cross-claim brought by the Federal Parties in which the EPA is attempting to put the costs of responding to the Gold King Mine spill on Sunnyside Gold and others. Doc. 192, ¶ 143.[2] The Navajo Nation also emphasized at the hearing that the deposition of Mr. Stanislaus is necessary in order to test the Requests for Admission in which the EPA has apparently responded, the EPA takes responsibility for the spill “but we deny liability with respect to the claims.” Transcript, 68:21-25; 69:7:17.
 
The testimony about this message is the type of personal knowledge that is unique to this witness and must be explored through his deposition. It will likely lead to the discovery of admissible evidence because the issue of who should bear the response costs and enforcement costs of the Gold King Mine spill is central to the defenses of Sunnyside Gold and other mining defendants. For the Sunnyside Gold, it is essential to its defense to the cross- claim brought against it by the Federal Parties. Testimony regarding this issue cannot be obtained from some other source. The personal knowledge of Mr. Stanislaus can only be obtained through a deposition. No party has suggested that another EPA official has the same knowledge (except perhaps for the EPA administrator at the time of the Gold King Mine release) and could be a source to testify about the email messages, the Congressional testimony that apparently contained some inconsistencies, the approval of the Bonita Peak Mining District Superfund Site, or the technical evaluations and reports that Mr. Stanislaus approved in his position as the Assistant Administrator of OLEM.
 
*4 The Federal Parties have argued that even if the deposition of Mr. Stanislaus needs to be taken, the deposition can wait until discovery is scheduled in regard to the second phase of this matter, the phase in which the apportionment of enforcement and response costs will be ascertained. Sunnyside Gold argues in response that Mr., Stanislaus's testimony will be relevant to the issue of liability, and not just apportionment. The Special Master finds this argument availing. The personal knowledge of Mr. Stanislaus that needs to be explored during his deposition concerns the messaging and pivot by the EPA from the statements that EPA caused the spill to the message that EPA was responding to a historic problem of mining waste in the Colorado mountains that has been a long standing issue of neglect. This message, and circumstances surrounding the creation and dissemination of this message, are relevant to the issue of liability, which must be determined prior to apportionment and recovery.
 
Arrangements and accommodations can be made so that the videotaped deposition of Mr. Stanislaus will not be particularly burdensome to the witness. All depositions are burdensome to some extent, especially when an international businessman is being asked to take time out of his day-to-day duties to attend to litigation arising from events that occurred several years ago. However, based on the agreement of the parties, the deposition will be limited to four hours, and will take place either in his home or at a place convenient for Mr. Stanislaus. Because of Covid restrictions, the attorneys will be attending via videoconferencing. Sunnyside Gold has agreed to postpone the deposition until April, 2021, when it is less burdensome for Mr. Stanislaus, who has upcoming deadlines that are critical to the World Economic Forum's Global Battery Alliance.
 
In conclusion, the Special Master finds that Mr. Stanislaus is a former high-ranking government official who is protected by the Morgan doctrine and its progeny. However, the Special Master finds that extraordinary and compelling circumstances exist, and that Mr. Stanislaus has personal knowledge of material facts that are essential to the defenses of Sunnyside Gold that cannot be obtained elsewhere. Therefore, the Federal Parties’ Motion to Quash the Deposition of Mr. Stanislaus is denied. The deposition must be taken between the dates of April 1 and April 30, 2021 and will be limited to four hours.
 
IT IS SO ORDERED.
 
THE PARTIES ARE NOTIFIED THAT WITHIN 21 DAYS OF SERVICE of a copy of the order, report, or recommendations, they may file written objections with the Clerk of the Court pursuant to Federal Rule of Civil Procedure 53(f)(2). A party must file any objection with the Clerk of the Court within the twenty-one-day period if that party wants the District Judge to hear their objections. If no objections are filed within the twenty-one-day period, the District Judge may adopt the order, report, or recommendations in whole. If filing a document for which a privilege is claimed, check the access limited to filer and the court only box. For questions about filing restricted access documents, please contact the CM/ECF Help Desk by email at cmecf@nmd.uscourts.gov (link sends e-mail) or by phone at 505-348-2075.

Footnotes
Sunnyside Gold has also counterclaimed against the Federal Parties to recover its response costs and for contribution.
Paragraph 143 of the Federal Parties’ cross-claim states, “Pursuant to Section 107(a)(1) and (2) of CERCLA, 42 U.S.C. § 9607(a)(1) and (2), Sunnyside Gold and Kinross are jointly and severally liable to the United States for all response costs incurred by the United States in connection with the Site, including enforcement costs and interest on response costs.”