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Groups sue Montana DEQ over refusal to uphold mining bad-actor law

Hecla Rock Creek Mine
Posted at 5:17 PM, Nov 11, 2021
and last updated 2021-11-11 19:17:32-05

MISSOULA — Three tribal groups and several conservation organizations filed a lawsuit against the Montana Department of Environmental Quality this week for not enforcing a state law that bans from future opportunities any entities that don’t clean up existing mine sites.

The lawsuit, filed in Lewis and Clark County District Court, lays out the groups’ claims as to why Helca Mining Company president and CEO Phillips S. Baker Jr. meets the definition of a “bad actor” – a company or company leader that degraded some part of the state but refuses to clean it up – and why DEQ was wrong to back out of four years of legal action to hold Baker accountable under Montana’s bad-actor law.

Currently, the Hecla Mining Company is proposing to dig copper and silver mines beneath the Cabinet Mountain Wilderness. Other companies have had the project on the drawing board for 30 years, but it only got traction after Hecla bought it for $30 million in 2016.

Then in October 2017, six conservation groups, backed by the Fort Belknap Indian Community, alerted DEQ to the fact Baker is subject to Montana’s bad-actor clause. Ironically, he’s one of the reasons Montana has such a clause.

Before he became the president of Hecla in 2001, Baker was the top financial officer for Pegasus Gold, Inc. for four years before it declared bankruptcy in 1998 and was vice president and director of four Montana Pegasus Gold subsidiaries.

After declaring bankruptcy, Pegasus Gold defaulted on its reclamation obligations at the Zortman-Landusky, Beal Mountain, and Basin Creek cyanide heap-leach gold mines, forcing Montana taxpayers to shoulder the companies’ cleanup responsibilities.

Federal and state agencies have spent more than $50 million trying to clean up the Zortman-Landusky mines, which have permanently contaminated the water of the Fort Belknap Reservation in northeastern Montana. The DEQ predicted that water treatment, which must continue indefinitely, will cost Montanans more than $2 million annually.

This and other environmental disasters led the 2001 Montana Legislature to pass the “bad-actor” clause of Montana’s Metal Mine Reclamation Act, which prohibits companies with uncompleted reclamation efforts or their managers from starting new mining projects. Former Republican Gov. Judy Martz signed the bipartisan bill.

Baker has argued that, as a financial officer, he had no say in Pegasus mining operations so the law shouldn’t apply to him.

After Hecla sued DEQ challenging the bad-actor claims, DEQ counter-sued in March 2018 to be sure the law applied. This May, more than three years later, District Court Judge Mike Menahan ruled that DEQ has the authority to enforce the bad actor law against Baker and his Idaho-based company, clearing the way for the DEQ to reach a decision.

However, a few months later, the Gianforte administration announced it would not enforce the bad-actor provision. Wednesday’s lawsuit claiming DEQ violated the bad-actor provision and the Montana Constitutional right to a clean and healthful environment was the groups’ response, after announcing their intent to sue in mid-September.

The groups also delivered a petition with more than 3,000 names to Gov. Greg Gianforte’s office, calling on the governor to direct DEQ to enforce the state law.

The tribal plaintiffs include the Confederated Salish and Kootenai Tribes, Fort Belknap Indian Community and Ksanka Elders Advisory Committee. The conservation groups include Earthworks, Clark Fork Coalition, Rock Creek Alliance, Montana Trout Unlimited, Montana Environmental Information Center, Montana Conservation Voters Education Fund, Save Our Cabinets and the Cabinet Resource Group.

“It’s hard to imagine how DEQ’s about-face on ‘bad actor’ enforcement serves Montanans or fits in with the decades-long work to clean up and restore mining-damaged waterways and landscapes,” said Karen Knudsen, Clark Fork Coalition executive director. “By backing away, DEQ is inviting mining history to repeat itself – and communities, taxpayers, and clean water will be the ones paying the price.”

The CSKT joined the lawsuit because tribal members have treaty rights to use the Cabinet Mountains for hunting, fishing and cultural activities, which could be curtailed if the mines pollute or diminish streams and aquifers. Some worry that if one of the two proposed mines removes as much groundwater as predicted in its water-right application, streams in the wilderness and surrounding area could get dangerously low.

“The Cabinet Mountains hold an important position in the relationship between the Ksanka people and all of creation,” said Vernon Finley of the Ksanka Elders Advisory Committee and member of the Confederated Salish and Kootenai Tribes. “The “Bad Actor” law is the best way to hold people responsible for attempting to heal the wounds inflicted on nature. To simply free someone from their responsibility is to allow them to do it again and is unforgivable.”

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.