Navajo Times, November 10, 2022

Story by Diane Joy Schmidt

New U.S. Government settlement for individual Navajo farmers

Navajo farmers with poisoned lands and waterways waited seven years for justice. Now, they may finally get some justice. A settlement offer is on the table for the individual farmers who suffered losses and joined in a mass tort case against the government.
In 2015, the Gold King Mine spill poisoned the Animas and San Juan rivers and shut down farming and ranching for Navajo farmers. It was devastating. 

The EPA asked people to file Form 95 tort claims to document their losses. After some initial reservations about trusting the EPA, eventually close to 300 Navajo farmers and ranchers filled out the forms. Then, the EPA turned around and denied the claims. 

At that point the Navajo administration under Russell Begaye determined that, if the individual farmers and ranchers were going to recover, they had to pursue a lawsuit. They reached out to a law firm in Santa Fe to see if they would take on the individual cases of the farmers. 

It was snowing in Santa Fe this Friday, November 4th, when Kate Ferlic, partner in the politically well-connected Santa Fe law firm of Egolf Ferlic Martinez Harwood, shared in an interview with the Navajo Times the first news that a settlement offer has been made by the United States government to these Navajo farmers, known as the Allen plaintiffs (because someone named Allen filed the first Form 95 after the spill). 

Ferlic had hinted Monday that she had some news but was tight-lipped until the plaintiffs had all been notified and she had checked with the U.S. government lawyers and gotten the green light, so she was now ready to share the news:  

“The Allen plaintiffs have reached a settlement in principle with the United States,” said Kate Ferlic, lead attorney for the now 200-plus farmers and ranchers who had previously been denied by the EPA for their losses. 

She invited another lawyer to join in the meeting, Mark Cox, who also “put blood sweat and tears into this litigation,” and both agreed, “Seven years is a long time to wait.” She added, “We are thrilled for the farmers and ranchers.”

What exactly is Form 95? The Department of Justice states that, “The Standard Form 95 is used to present claims against the United States under the Federal Tort Claims Act (FTCA) for property damage, personal injury, or death allegedly caused by a federal employee’s negligence or wrongful act or omission occurring within the scope of the employee’s federal employment.” 

Eventually the government admitted negligence. Ferlic explained that those who had originally filed a Form 95 that was denied were eligible to be included in the mass tort suit.

Originally there were about 290 claimants. Now there are about 224. Ferlic explained that initially some dropped out who chose not participate in discovery; in other words, they didn’t fill out the forms they were sent asking for information specific to their losses. And, over time others passed away, many from Covid. She said they reached out to the heirs, and there are some estates in the suit, but not all responded. She said they made every effort to contact families, saying “We sent them dozens of letters.”

She said, “If everyone can sign and send back releases by the end of November, then we can have, or I should say, we hope to have checks to them in January.” said Ferlic. 

Ferlic says the law office will be coming to the Navajo Nation to host meetings the week of November 14th to answer questions or discuss specific settlement offers. Ferlic explained the meetings are only open to their clients — “That means you can only attend if we are your lawyers,” but she wanted to make sure the information was printed in the paper.

The meetings will be held at the following places: 
Shiprock Chapter House, Tuesday November 15 from 10-12
San Juan Chapter House, Tuesday November 15 from 2-4
Nenahnezad Chapter House Wednesday November 16 from 10-12
Red Mesa Chapter House Thursday November 17 from 10-12
Aneth Chapter House Thursdav November 17 from 2-4

Notification letters went out

Ferlic said that notification letters were mailed out on Saturday, October 29th to all the farmers in the suit detailing the terms of the settlement. She would not say how much the settlement is—yet. She explained that the total amount of the settlement remains confidential until the settlement is finalized. Then the total amount will be public knowledge when the case settles. 

However, she did indicate that the response from the confidential letters she sent out has been positive. “The response has been positive from what we’ve heard so far. Folks probably got their letters Tuesday. The office has been flooded with calls all week, we’ve heard back from about 25% so far,” she said. And they have already received back a number of signed agreements. 

It has clearly been a very personal case for Ferlic. “I have been out to Shiprock,Hogback, Nenahnezad, Aneth, all of these people, all of these places, throughout the litigation. Phone calls, mail, all of that. I really have met some of the most incredible people of my career through this litigation.”

Ferlic understands that the expected settlement win is bittersweet. Over this long seven years, “Fields go fallow, people sell up equipment in order to live. I really hope that this settlement goes through, and two, that farming flourishes again in those areas. And it’s expensive” to revive a farm, she said.

Different amounts

Individual farmers will receive different amounts. Ferlic explained that to figure out how much each person would receive, they had a person with special expertise work on it. “Our expert agricultural economist considered a whole bunch of factors in determining individual amounts, and standardized prices in determining those amounts. Like, an acre of melons was worth the same across all of the farmers and ranchers. We provided the rubric (a type of scoring guide) to all of the individuals through the discovery process. Each of the farmers and ranchers provided individualized information, detailing their losses.”

New settlement

This mass tort settlement is separate from the $31 million dollar settlement the Navajo government reached with the EPAback in June. 

Ferlic indicated that the Navajo Nation is going to go after additional compensation from the U.S. government for the farmers.

What is a mass tort?
A mass tort iskind of like a class action lawsuit, only it’s different, because in a mass tort, through a claims process, it is determined what each individual member gets. Mass tort suits are more commonly done now than class action lawsuits, and lawyers usually work on a contingency basis, meaning, they only get paid if they obtain successful results. Ferlic said their firm took the case on a contingency basis.

A bit about Ferlic
   During the interview, Ferlic took one call. “That was my child,” she explained. “I have two sons, a 14-year-old and a 10-year-old.” Ferlic grew up in South Bend, Indiana. She studied philosophy and theology at Georgetown University as an undergraduate, and later moved to New Mexico (“it’s a long story”) to work as a journalist at the Santa Fe New Mexican and then, at Outside Magazine. She met her husband here, and decided to go to law school at the University of New Mexico where received her law degree in 2006. She worked as special counsel to former Governor Bill Richardson before joining this firm. She welcomed the snow coming down outside and said, “I love to ski.”

In summing up her career as a lawyer, she says, “I’m an advocate for social justice. I think that through litigation, you can change the way either corporations or governments behave. I certainly think that litigation is a tool for social change.” #

Awarded:
1st place Agriculture Reporting, New Mexico Press Women, 2023.

Story by Diane Joy Schmidt