“No genuine issue of material fact exists ‘unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.’” Hasan v. AIG Prop.

“Rather, ‘[t]o defeat a motion for summary judgment, evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise.’” Hasan, 935 F.3d at 1098 (alteration in original) (quoting Bones, 366 F.3d at 875).

Plaintiffs assert that Weston’s duty arises from misfeasance because of the following affirmative acts by Weston: (i) calculating the amount of water in the mine; (ii) planning the 2015 site work; and (iii) excavation activities.

Plaintiffs assert that: Weston’s engineer Mr. Petri was responsible for calculating the amount of water behind the blockage at the Gold King Mine—a determination that informed the misguided approach negligently employed by EPA and its contractors.

OSC Way tasked Weston with performing calculations related to the manmade pond capacity that would be required to capture anticipated wastewater discharge from the Gold King Mine.

Although the Navajo Nation expresses concern that substances left behind in the San Juan River by the Gold King Mine release—if any—could remobilize “during storms and other natural events,” none of the restoration programs proposed ...

Weston argues that “CERCLA preempts tort damages that attempt ‘to achieve something other than the restoration, replacement, or acquisition of the equivalent of a contaminated natural resource.’” Motion at 3 (quoting New Mexico v. General Elec.

The Tenth Circuit has held “CERCLA's comprehensive NRD scheme preempts any state remedy designed to achieve something other than the restoration, replacement, or acquisition of the equivalent of a contaminated natural resource.” New Mexico v. General Elec.

CERCLA's saving clauses (as well as other CERCLA provisions) undoubtedly preserve a quantum of state legislative and common law actions and remedies related to the release and cleanup of hazardous waste ... the principle purpose of the saving clause located at 42 U.S.C. § 9652(d)4 “is to preserve to victims of toxic waste the other remedies they may have under federal or state law.” PMC, Inc. v. Sherwin–Williams Co., 151 F.3d 610, 617 (7th Cir.1998) (Posner, J.

Weston contends that “[t]he Navajo Nation seeks through tort to recover natural resource damages without the restrictions—regarding the disposition of a money award, the process for identifying the injury, or standards for judging appropriate restorative programs—that CERCLA and its implementing regulations require” and that “CERCLA, rather than tort, provides the Navajo Nation a viable and complete remedy to receive compensation for the repair or replacement of any natural resources that it can prove were damaged.” Motion at 21, 23.

The Court grants Weston’s Motion to the extent it seeks a judgment that the limitations on CERCLA natural resource damages apply to Indian tribes.