NAVAJO NATION DEPARTMENT OF JUSTICE OFFICE OF THE ATTORNEY GENERAL ETHEL B. BRANCH RODGERICK T. BEGAY [RTTORNEY GENERAL [AGTING DEPUTY ATTORNEY GENERAL MEMORANDUM TO: ‘Community Members Affected by the Gold King Mine Spill FROM: —_>F— Ethel B. Branch, Attorney General Office of the Attomey General DATE: November 5, 2015 SUBJECT: Update on Gold King Mine Spill ‘On Monday, November 9 (Shiprock) and Tuesday, November 10 (Oljato and Aneth) the ‘Navajo Nation will hold information sessions to update the Navajo people on the status of recovery efforts for losses caused by the Gold King Mine spill. The information sessions will include updates by the Navajo Nation Environmental Protection Agency (“NNEPA”), the Navajo Nation Department of Agriculture, and the Navajo Nation Department of Justice (“DOJ”). See the attached flyer for additional detail on these information sessions. On August 5, the United States Environmental Protection Agency (“USEPA”) triggered a massive blowout of the Gold King Mine, releasing three million gallons of toxic wastewater into Cement Creek. As a result toxic sludge flowed south from Cement Creek into the Animas River, then into the San | Juan River (“River”), a major source of water for the Navajo Nation. In response to the discharge, and to limit the harms to our people, the Navajo Nation closed the River to all uses. Immediately after i notification of the spill, the Navajo Nation put the public on notice and NNEPA began monitoring the \ plume of toxic sludge, and taking samples of River water and sediment, ‘The Navajo Nation kept the River closed until its own data and other available information | indicated that the River was safe for certain uses. President Begaye, in consultation with the NNEPA, has | reopened the River for the limited purposes of livestock and irrigation use. The NNEPA continues to test and monitor the quality and safety of the River. ‘Throughout our entire response effort, we have been in active discussions with the USEPA concerning both the results of USEPA testing, and recovery of damages caused by the spill. We want the Navajo people to obtain a full, fair. and prompt recovery for all damages suffered. To that end, the Navajo Nation DOJ is working to address some concerns it has about the recovery process. Generally, the United States is immune from liability under a doctrine known as “sovereign immunity.” A law called the Federal Tort Claims Act (“FTCA”), however, waives sovereign immunity under certain circumstances, P.O, Box 2010 © Window Rock, Navajo Nation (AZ) 86515 © (928]871-6345 © FAX No. (928)871-6177Memo to: Community Members Affected by the Gold King Mine Spill November 5, 2015 Page 2 and holds the United States and its agencies responsible for wrongs they cause, FTCA claims can be filed using an optional form developed by the U.S, Department of Justice. That is called the Standard Form 95, which is intended to help individuals provide necessary information for their FTCA claims. But the Navajo Nation is concemed that the way Standard Form 95 claims are typically worded and processed could limit recovery for the Navajo people in significant and harmful ways. The forms contain a clause stating that acceptance of any amount of money to cover the claim constitutes “full satisfaction and final settlement” of the claim. Moreover, the forms require the person making a claim to state a definite ‘amount of loss and to provide backup support for their loss. We are concemed that the Standard Form 95 4s not suitable for our people in this case. For examp'e, we are concerned thal once the USEPA processes and pays any amount of money to a claimant, the USEPA may take the position that the claimant would be prohibited from bringing any future claims for additional damages. Thus, by accepting $1,000 today, a claimant might be prevented from recovering $10,000 in the future. ‘The USEPA has said that they would not limit the Navajo people's recovery in any arbitrary way. However, to address the Navajo Nation DOJ's concems, we have asked the USEPA to set up an official FTCA process and relief fund that allows the Navajo people to seek ongoing compensation for estimated damages, which would be processed and paid quickly on a rolling basis. The Notion has also asked for formal guidance and clarification from the USEPA and United States Department of Justice confirming that acceptance of any money from the United States in the near term does not prevent recovery for future injury and expenses not yet known to the Navajo people, Finally, the Nation is working with the United States Congress to develop legislation ensuring that the Navajo people will be fully and fairly compensated for all expenses suffered now and in the future as a result of the Gold King Mine spl. ‘The Navajo Nation Department of Justice, and its counsel, Hueston Hennigan LLP, have also scheduled in-person workshops for Thursday, November 12 and Friday, November 13 with volunteers to help you put your claims together with the supporting documentation you should submit to demonstrate the losses you have incurred. For example, if you are secking damages for lost crops, you could bring receipts for money spent in planting and maintaining those crops, as well as documentation ‘comparing last year's yield to this year’s yield. To the extent you are able, you should bring photographs evidencing any harms to your fields, Likewise, if you sought alternate sources of water or other resources affected by the closure of the river, you could bring water utility bill receipts or other documents reflecting the cost you incurred obtaining those items. The more specifie you are, and the more documentation you have supporting your claimed damages, the more efficient and productive the process will be, See the attached flyer for additional detail on these claims documentation workshops. ‘We understand that you may have been approached by various lawyers or law firms, The ‘Navajo Nation takes no position on whether you should obtain counsel, There are benefits to having ‘counsel, such as experience with the subject matter, and having an advocate act on your behalf without interrupting your day-to-day lives. Your claims may be complex, or you may fee] more comfortable having legal representation. There are also potential drawbacks to having counsel. For example, your claims may be relatively straightforward, such that you could simply file a claim after hearing some information at one of our presentations, which would effectively be cost free. The cost of an attorney 10 handle FTCA claims, however, could be as much as 25% of your recovery. By stafute, attomeys should not be demanding more than 20-25% of your estimated recovery (depending on the cireumstances).Memo to: Community Members Affected by the Gold King Mine Spill November 5, 2015, Page 3 We are and remain committed to helping obtain full, fair and prompt recovery for the ‘Navajo people. This is in addition to our efforts to obtain recovery for the Navajo Nation as a whole, We have also enclosed here a set af Frequently Asked Questions that provides more information on the FTCA process and our efforts on bebualf of the Navajo people Most respectfully, NAVAJO NATION DEPARTMENT OF JUSTICE Ethel Branch, Attorney Generat