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

Montanore Mine
Posted at 8:59 AM, Sep 13, 2021
and last updated 2021-09-13 10:59:33-04

MISSOULA — A group of conservation organizations have signaled their intent to sue if the state of Montana doesn’t uphold the law and pull the mining permits for the Montanore and Rock Creek mines in northwestern Montana.

On behalf of six Montana conservation groups, Earthjustice attorneys sent a letter to Montana Department of Environmental Quality director Chris Dorrington, informing him that the department was in violation of the state Metal Mine Reclamation Act because it recently backed out of enforcing the “bad actor” provisions against Hecla Mining Company president, CEO and director Phillips S. Baker Jr.

In 2018, DEQ recognized that Baker fit the qualifications of a bad actor because he was the chief financial officer of Pegasus Gold Incorporated from 1994 to 1998. Starting in the 1970s, Pegasus Gold operated three cyanide heap leach gold mines in Montana: the Zortman Landusky Mine near the Fort Belknap Reservation, the Basin Creek Mine near Helena and the Beal Mountain Mine near Butte.

After Pegasus Gold declared bankruptcy in 1998, the company walked away, leaving little money for reclaiming the mines, so it landed on the shoulders of Montana citizens.

The 2001 Montana Legislature recognized the burden and added the “bad actor” provisions,” mandating that any mining company or company leader that defaulted on their cleanup responsibilities is barred from receiving any subsequent permits to mine in Montana. Baker was a Pegasus Gold leader. Now that he’s a Helca leader, the law says his company is prohibited from receiving state permits.

The Earthjustice letter states that if the DEQ doesn’t withdraw the mining permits issued to Helca’s two proposed mines, the Montanore and Rock Creek mines in the Cabinet Mountains, the conservation groups will sue to force the state to follow the law.

The groups include Earthworks, Montana Environmental Information Center, Rock Creek Alliance, Save Our Cabinets, Clark Fork Coalition, and the Montana Conservation Voters Education Fund.

“The Pegasus entities led by Mr. Baker left the State of Montana and its federal partners with crushing financial liabilities for multiple large-scale mines across the state and a devastating pollution burden that will be borne by Montanans for generations. The brunt of Mr. Baker’s legacy of toxic mining pollution is disproportionately borne by the Fort Belknap, Gros Ventres and Assiniboine Tribes. Given this history, DEQ’s authorizations of Mr. Baker’s current company, Hecla, to profit from new mine development in Montana would violate state law and work a great injustice,” the letter said.

In 2018, the groups, along with the Fort Belknap Indian Community, urged DEQ to enforce the bad actor provisions shortly after Hecla bought the two mines in 2016 and Baker revived the efforts to develop the Rock Creek and Montanore mines. DEQ then filed legal claims against Baker, Hecla and its subsidiaries, and asked the court to rule that “Baker is precluded from mining and mining exploration in Montana.”

Then this May, 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 make a decision. But after three years of pursuing the court case, DEQ suddenly abandoned the effort in mid-July. Dorrington issued a statement justifying the action, saying “it seems highly unlikely the case would result in reimbursement.”

Under the bad actor provisions, the only way someone like Baker could be granted a mining permit is if the person or company pays DEQ for reclamation of the previous mine site, in this case, the Zortman Landusky, Basin Creek and Beal Mountain sites, plus all the penalties and interest that have accrued since those mines closed in 1998.

That is the reimbursement that Dorrington was referring to.

The law says if there is no reimbursement, there should be no permit. But in its case dismissal, DEQ said nothing about taking enforcement action, that is, denying the permits. Instead, DEQ said the main reason it backed out was because of the change in gubernatorial administration and political priorities, according to court documents.

Gov. Greg Gianforte has spoken favorably of Hecla and held a 2020 campaign event at Hecla’s offices in Libby. During that event, he criticized state and federal officials for how long it has taken to get the two mines permitted, according to the Montana Free Press.

The conservation groups argue that political priorities shouldn’t trump the law. So the DEQ should fulfill its obligations “regardless of who is elected Governor of the State of Montana.”

DEQ has 120 days to respond before a lawsuit is filed.

Contact reporter Laura Lundquist at