News

VICTORY! Judge Says DEQ Violated the Law on Smith River Mine

by Bill Pfeiffer

You stopped the mine on our beloved Smith River. On April 11, Montana Trout Unlimited received word on our court challenge that we won both the MEPA and MMRA claims we filed against the Black Butte Mine and DEQ. Your donations, letters, phone calls, and time helped us achieve this victory. This marks a rare moment in Montana history that a mine has been stopped because it poses serious environmental risks. Thank you!  

In its ruling, the Court stated: “Plaintiffs claim that DEQ failed to ensure the safety and stability of Tintina’s tailings storage facility, failed to prevent excessive nitrogen from entering Sheep Creek and contributing to algal blooms that choke out fish and other aquatic life, and failed to consider reasonable alternatives to alleviate or avoid potential environmental harms….This Court finds that DEQ’s decision to permit the Black Butte Copper Mine was arbitrary, capricious, and unlawful.“

As you know, MTU joined MEIC, EarthWorks and American Rivers to challenge, in district court, that MT Department of Environmental Quality (DEQ) did not properly or sufficiently evaluate the risks this mine poses to water quality, quantity and the Smith fishery under the Montana Environmental Policy Act (MEPA) and MT Metal Mine Reclamation Act. The first and only hearing was held on July 16th, 2021, and the decision came in our favor of all of our claims about the risks the mine poses. 

If we’ve learned anything in this fight, it is that there are always more rounds, so while we are celebrating this win, we remain poised for our next action. We are also still committed to the mineral withdrawal on public lands that will provide an additional layer of protection for the Smith River. 

We could NOT have accomplished historic protection without you.

Thanks for all you do for trout in Montana and everywhere!

David Brooks

Executive Director

Montana Trout Unlimited

News

Help Protect Clean Water! Comment to DEQ

by Bill Pfeiffer

Montana’s Department of Environmental Quality (DEQ) is proposing to roll back water pollution protections that safeguard our stream and rivers, putting our cold-water fisheries, drinking water, human health, outdoor recreation, and agricultural heritage at risk. Let them know you oppose this effort. Comments are being accepted until February 8, 2022. Email [email protected] to make your comment.

Background: In April, 2021, Governor Gianforte signed the most dangerous dirty water bill from last year’s legislative session, Senate Bill 358, into law. SB 358 revises Montana’s model water quality standards for river and stream health in two substantive ways.  

First, it wholesale eliminates the EPA-approved numeric nutrient criteria that protect waterways from degradation and replaces those well-established, enforceable numeric criteria with an ambiguous, unenforceable, write-as-you-go adaptive management program for nutrients. Second, it greatly expands pollution exemptions for polluting industries discharging into our waterways.  

With the passage of SB 358, Montana went from being a national leader in adopting numeric nutrient standards that protected most of our waterways from harmful algal blooms driven by nitrogen and phosphorus pollution, to being the first state in the country to eliminate a proven science-based approach for protecting water quality. 

Rolling-back science-based water quality standards threatens Montana’s world-class rivers, outdoor recreation, human health, agriculture and the public trust: 

  1. Waterways: Montana’s world-class waterways are the lifeblood of our state, supporting blue-ribbon and renown fisheries, trophy wildlife, and our agricultural economy. Eliminating proactive, enforceable, science-based pollution controls represents a critical failure to protect local water quality in our streams, rivers, and lakes and perpetuates algal blooms due to unhealthy levels pollution from nitrogen and phosphorus.   
  1. Outdoor Recreation: Montana’s $7.1 billion outdoor recreation economy and the 71,000 jobs and businesses it supports depend on clean water and healthy rivers. Excessive, uncontrolled nutrient pollution entering our rivers and lakes puts the second largest sector of Montana’s economy and the health of the waterways that attract visitors from around the world at risk — all to benefit the polluting special interests that wrote the bill. The same goes for damaging the streams, rivers, and lakes that Montanans have loved for generations, a heritage of outdoor recreation that most Montanans aim to pass on future generations. 
  1. Human Health: All Montana communities and families rely upon clean water for drinking and producing the food we eat. By removing the standards that determine whether a waterbody is polluted by nitrogen and phosphorus – the most pervasive pollutants threatening Montana’s waterways – the health of Montanans’ drinking and irrigation, and livestock water becomes uncertain. This rollback prioritizes industry and corporate polluters over the health of Montana citizens and communities. 
  1. Race to the Bottom – Write as you go standards don’t hold point source polluters accountable. Point source polluters (wastewater treatment plants, refineries, mines, sewage, and other direct discharges into rivers) need to be held accountable for the pollution they contribute to local waterways. The proposed write as you go narrative standards take away the responsibility of major polluters to make progress towards a clear, enforceable, numeric goal for nutrient discharges. Most sectors in Montana already need to invest in necessary upgrades in pollution control technology to protect local water quality, but without clear, enforceable numeric goal posts, that responsibility becomes clouded and is disincentivized.  

The proposed narrative standards allow DEQ and polluters to wait to react to the negative impacts of pollution, like harmful algal blooms, after they happen, rather than preventing those impacts.  Restoring waterway and river health once polluted is a more costly and time-consuming endeavor than proactively managing point-source pollution from the start. 

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Science Should Guide Water Quality Standards: By rolling back science-based, enforceable water quality standards for nutrient pollution, Montana DEQ will have to wait for a visible pollution event to occur before addressing the problem and taking any enforcement action against nutrient pollution discharges. We shouldn’t rely on reactive, subjective, write as you pollute processes and enforcement when it comes to the health of our waterways.  

The “incremental” ‘adaptive management’ approach proposed in the new rule is not only an unenforceable concept that fails to protect our local waterways from pollution, but it is also reactive in nature, encouraging a ‘wait and see’ approach to pollution impacts, including potential mass fish kills, nuisance or even toxic algal blooms, or worse, before the root cause of the pollution is addressed.   

Montana is Taking a Giant Step Backwards: Montana was a national leader adopting science-based, enforceable water quality standards for nutrients in 2015, and we’re now the first in the country to remove strong, science-based nutrient standards that protect our rivers from harmful algal blooms. In the face of climate change, warming water temperatures, variable snowpack and runoff, river flows and persistent drought, the rollback of enforceable numeric standards has put Montana’s waterways in even greater peril. Comment to MT DEQ (email: [email protected]) before Feb. 8, 2022 and ask them to protect our water quality!

News

Stand up for the Clean Water Act

by Bill Pfeiffer

Many of you may remember MTU’s long history in standing up for the protections our streams have under the Clean Water Act. The EPA is proposing a new policy that would be the first step in restoring protections for small streams, headwaters, and wetlands that are critical to a healthy and functioning water system.

This “Waters of the United States” rule – better known as WOTUS- is based in sound science (and good common sense): If we pollute upstream, we put downstream waters at risk.

Millions of miles of streams and millions of acres of wetlands lost Clean Water Act protection under the previous administration. Now we have a chance to see that they’re protected going forward.

This proposal would officially roll back the previous administration’s rule and largely return to earlier guidelines. Speak up today on behalf of the rivers and streams we care so much about, and the watersheds we are working so hard to conserve.

And then stay tuned. Later this year, the EPA will release a new definition of “Waters of the United States” covered by the Clean Water Act, and MTU and TU will be working hard to ensure it provides lasting protections for small headwater streams.

News

MTU Starts “Wrappin’ & Rappin'” Vidcast

by Bill Pfeiffer

Wrappin’ & Rappin’ is Montana TU’s new video podcast series, focusing on signature flies from some of the state’s premiere waters, as well as discussions about conservation in the places our guests know best. Each week we tie a fly and chat! In this episode, we focus on the Smith River and the Gonzo streamer, popularized by Joe Sowerby of MT Fly Fishing Connection. Our guests our MTFFC guides Will Plumhoff and Jason Brininstool. We discuss this year’s drought and how the river fared, hear some stories of the Smith’s infamous weather, and talk best boat camps, including one that may be haunted! Enjoy!

News

MTU & Partners File Legal Action to Enforce “Bad Actor” Law

by Bill Pfeiffer

Today, the Confederated Salish and Kootenai Tribes, Fort Belknap Indian Community, Ksanka Elders Advisory Committee, and several conservation organizations took legal action in State District Court to compel the Montana Department of Environmental Quality (DEQ) to fulfill its legal duty to enforce the “Bad Actor” law against Hecla Mining Co. and Hecla CEO Phillips S. Baker, Jr. Tribal leaders and conservationists are concerned about the devastation to the land and water from Baker’s former mining operations (the Zortman Landusky and Beal Mountain Mines) and the threat of proposed new mines.

“Good governance requires that laws be enforced, especially those that are designed to protect the public,” said Andrew Werk, Jr., President of the Fort Belknap Indian Community. “Our community members know all too well about the lasting legacy of mining pollution. This law is about protecting communities and ensuring that mining companies take responsibility for their actions, and we cannot emphasize strongly enough the importance of enforcing it.”

“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.”

The Bad Actor law was enacted in 2001 to prevent senior mining executives and companies from receiving a new permit to mine in Montana if they’ve failed to clean up past operations unless they reimburse the state for those cleanup costs. 

DEQ filed a Bad Actor enforcement action against Hecla and Baker in March 2018. After the State District Court ruled that DEQ did indeed have jurisdiction over the Idaho-based company and Baker, DEQ announced it was dropping the case, citing the election of a new governor, among other reasons. 
The tribes and conservation groups gave DEQ advance notice, and an opportunity to reinitiate enforcement before initiating today’s legal action.

Today’s complaint asserts that the DEQ’s refusal to enforce the Bad Actor law violates its clear legal duties under the Montana Metal Mine Reclamation Act and Montana’s Constitution. The group also delivered a petition with more than 3,000 names to Gov. Greg Gianforte’s office, calling on the governor to protect Montana by directing DEQ to enforce the state law to prevent a wealthy Idaho-based mining executive from getting off “scot-free.”  The lawsuit is filed on behalf of the tribes, as well as conservation organizations represented by Earthjustice (Earthworks, Montana Environmental Information Center, Clark Fork Coalition, Rock Creek Alliance, Montana Conservation Voters, Montana Trout Unlimited, and Cabinet Resources Group).

“It’s DEQ’s job to enforce the law and prevent corporate polluters from getting off ‘scot-free’ from their cleanup responsibilities,” said Bonnie Gestring, Northwest Program Director for Earthworks. “DEQ’s decision to drop this case leaves us no other option than to compel enforcement of our reclamation laws through the courts.” 

“The Bad Actor law was passed by a republican legislature and signed by former Governor Judy Martz in order to assure and require that mining projects are properly reclaimed,” stated Derf Johnson, Clean Water Program Director with the Montana Environmental Information Center. “Governor Greg Gianforte cannot simply choose to ignore the law for political expediency, and that’s why we’re taking the DEQ to court.” 

“Governor Gianforte needs to do his job and protect Montana from rich out-of-state executives who have a history of sticking us with the bill to clean up their messes,” said Whitney Tawney, Executive Director of the Montana Conservation Voters Education Fund. “The law is clear: anyone who is responsible for poisoning Montana’s land and water must clean up their mess before receiving the right to mine in our state again.”

“The purpose of the Bad Actor law is to promote responsible mining, to protect Montana’s clean water, air and environment, as well as taxpayers from unscrupulous mining executives,” said David Brooks, Executive Director of Montana Trout Unlimited. “DEQ’s failure to enforce this law is such a clear-cut case it leaves us no choice but to take this action on behalf of Montanans and our state’s environmental health.”

“DEQ’s refusal to enforce the ‘bad actor’ law against Hecla and CEO Baker is indefensible,” said Earthjustice attorney Amanda Galvan, who is representing the groups. “This abdication of responsibility is not only illegal under Montana law, but also recklessly jeopardizes every Montanan’s constitutional right to a clean and healthful environment.”

“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, Executive Director of the Clark Fork Coalition. “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 Gianforte Administration is refusing to enforce the bad actor law, which will give mining companies and their executives a free pass to repeat irresponsible behavior,” said Mary Costello, Executive Director of Rock Creek Alliance and Save Our Cabinets. “The bad actor law must be enforced to protect Montana’s most valuable asset, which is clean water, and to send a message that no one is above the law.”  

“I find it unbelievable that the law is being ignored by DEQ and is opening the door to possible irreparable damage to the watershed of Rock Lake, one of the jewels of the Cabinets, as well as pollution from mine waste into Lake Pend Oreille, the second largest lake in the western United States,” said Jim Nash, President of Cabinet Resource Group.

Background

Phillips S. Baker served as the Vice President and Chief Financial Officer for Pegasus Gold, when it filed for bankruptcy in 1998, leaving the State of Montana with tens of millions of dollars in cleanup costs when the company abandoned its operations at the Zortman Landusky, Beal Mountain and Basin Creek gold mines. The state has spent more than $30 million at Zortman-Landusky alone, where acid mine drainage despoiled the land, water, and sacred sites of the Fort Belknap Tribes, whose reservation borders the mine site. Publicly funded water treatment costs continue at Zortman Landusky and Beal Mountain today and are likely to continue forever.

Hecla and its CEO, Baker, are currently proposing two massive new copper/silver mines (the Rock Creek and Montanore Mines) adjacent to and underneath the Cabinet Mountains Wilderness in northwestern Montana that have been the subject of two recent court decisions because the company’s mine plans failed to comply with the Endangered Species Act and Clean Water Act.  

The Bad Actor law was enacted in 1989 and strengthened in 2001 in direct response to the Pegasus Gold bankruptcy. The legislation was carried by former Senate President Tom Beck (R-Deer Lodge), passed the senate with bi-partisan support (a 97-2 vote), and was signed into law by former Republican Governor Judy Martz.