Commentary

Montana still hasn’t learned anything from its history

Gianforte pressures DEQ not to purse ‘bad actor’ claims

August 29, 2021 6:46 am

The Old Supreme Court Chambers in the state capitol in Helena (Photo by Martin Kraft, Wikimedia Commons license).

The Preamble to our State’s Constitution speaks to the importance of Montana’s quiet beauty, the grandeur of our Mountains, and the vastness of our rolling plains as underpinning our desire to improve our quality of life, equality of opportunity and to secure the blessings of liberty for this and future generations.

In fulfillment of that solemn commitment, the framers proposed, and “We the People” adopted in Article II, Section 3, our inalienable right to a clean and healthful environment – not as an aspiration, or a gauzy goal – but as one of the Article II fundamental constitutional rights guaranteed to every Montanan.

This right has been honored only in the breach by many.

Sadly, this time our constitutional protections are being brushed aside by the very agency charged with safeguarding Montana’s environment: Montana’s Department of Environmental Quality.

DEQ is charged with administering Montana’s Metal Mine Reclamation Act.  The MMRA contains what is known as a “Bad Actor” provision – specifically, the state may not issue a person or company a permit to conduct exploration or mining activities, if that person, company or the person’s former company (collectively the miner) failed to complete required mine reclamation, and the miner’s bond is forfeited requiring the state to carry out the reclamation. This provision was enacted with bi-partisan backing and with the support of the mining industry and signed by Gov. Judy Martz in 1989.

To make it simple, if the miner fails to clean up his mess, he’s a “Bad Actor” and will not be given the opportunity to create further messes for the taxpayers to clean up in the future.  Common sense? Sure it is.

So it made perfect sense when, in 2018, the DEQ brought a “Bad Actor” enforcement claim against Phillip S. Baker Jr., current President and CEO of Idaho-based Hecla Mining Company.  Mr. Baker was formerly Vice President and Chief Financial Officer of Pegasus Gold Inc., which, in 1998, went bankrupt and left in its wake abandoned, toxic mining messes across Montana – Zortman-Landusky, Beal Mountain, Basin Creek.  All of these messes had to be cleaned up at taxpayer cost – tens of millions of dollars – with the added bonus that taxpayers will be paying millions of dollars in perpetuity to treat water from these abandoned mining operations.

Baker now heads Hecla Mining, which is seeking permits to construct the Rock Creek and Montanore mines beneath the pristine Cabinet Mountains wilderness in northwest Montana.  But thanks to Montana DEQ’s 2018 enforcement, Baker could potentially be prohibited from mining in our state again unless or until he makes the state whole for the abandoned Pegasus mines.

DEQ was diligently pursuing its Bad Actor enforcement action in District Court when suddenly, in July, the DEQ announced it was dropping case. What changed, you might ask? Montana’s governor, that’s who.  Montana’s newly elected governor – Greg Gianforte – has made no secret of his support for Hecla’s proposed mining projects. And lo and behold, less than six months into his term, Gianforte’s DEQ abruptly reversed course and backed off its “Bad Actor” enforcement claim, potentially paving the way for Hecla’s projects.

Make no mistake, DEQ’s refusal to enforce the law is an affront to the communities still grappling with Pegasus’ toxic messes and an insult to Montana taxpayers who’ve been footing the bill for this cleanup.  But here’s the larger point: Montanans, whether taxpayers or not, have a fundamental constitutional right to a clean and healthful environment.  No miner has a right to violate that guarantee, much less at taxpayer expense.

Montanans have been on the short end of the stick time and time again. The miner comes in with promises of jobs and benefits; he opens a mine and takes the productive resources, and when the mine is no long profitable, he goes bankrupt and leaves an un-remediated toxic wasteland for the taxpayers to clean up.

Indeed, the Bad Actor law was passed in the wake of Pegasus’ bankruptcy and was clearly intended to hold mining executives accountable for their previous messes. Yet now, DEQ won’t even hold Pegasus’ former CFO accountable under the law.

For once, our fundamental constitutional right to a clean and healthful environment, should not be sacrificed on the altar of economic and political expediency.  Over the years, Montana taxpayers have, and will continue to spend hundreds of millions of dollars cleaning up irresponsible miners’ messes.

Will we never learn?  It’s high time we start!

James C. Nelson is a retired lawyer and former justice of the Montana Supreme Court.

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