News

MT Supreme Court Rules Against the Smith

by Bill Pfeiffer

Water-use permit for the Black Butte Copper Mine upheld by  the Montana Supreme Court 

Court rules in favor of DNRC and a company that seeks to mine near the headwaters of the Smith River. 

In a blow to the Smith River and future generations, the Montana Supreme Court today upheld the water-use permit granted by the Department of Natural Resources and Conservation to Sandfire Resources, which plans to pump and impound large volumes of groundwater at its proposed Black Butte Copper Mine, in Meagher County. Our coalition of conservation groups had argued that the permit did not address—or mitigate—up to 457 acre-feet of the groundwater that would have to be removed from the mine each year in order to facilitate mining operations. That’s millions of gallons of water per year that the company can pump, treat, store and control for much of the year without a permit or having to mitigate for the surface water losses it causes. While we work for and worry about low flows across the state, the mining industry gets a free pass on the majority of its water.  

The Montana Supreme Court heard argument in the case on March 29. The Court ruled that the mining company is not obligated to apply for a permit for the full amount of groundwater that it will have to pump at its mining operations adjacent to Sheep Creek, a major tributary of the Smith River. 

Given the value of water to all people and uses, including fish, wildlife, family homes and agriculture, this ruling is incredibly disappointing. Allowing mining companies a handout on massive water use threatens the lives and livelihoods of all downstream water users, not to mention the health of the treasured Smith River. 

This decision upholds the anti-conservation precedent of allowing mining companies to dewater groundwater, rivers and streams without fully mitigating the impacts. To undo this precedent, our coalition of conservation groups challenged DNRC’s issuance of the water-use permit in 2020, noting that Sandfire will have to pump up to 807 acre-feet of groundwater from its mine each year, which amounts to nearly 250 million gallons. We argued that the company should be required to seek a permit for the entire quantity. We appealed the permit decision both to the DNRC, and to a district court, before appealing to the Montana Supreme Court.  

The Supreme Court’s ruling will allow Sandfire to move forward with its mining operation—and the extensive groundwater pumping it requires—without ensuring that existing water users and the region’s waters will not be adversely affected. There is no court of higher appeal. 

We firmly believe this was a fight worth taking through this final appeal process and are thankful for the support of coalition members, Trout Unlimited Earthworks, Montana Environmental Information Center, American Rivers, and our legal representation by Earthjustice. Moreso, we are thankful for the tireless energy and help we have received throughout this long process by our committed grassroots supporters and champions, like you. 

Our love of the Smith River is undiminished, as is our resolve to offer it the best protection we can. Rather than hang our heads, we will continue to pursue much-needed restoration work in the Smith watershed, monitor any activity undertaken by the mine, and fight to ensure that the Smith’s water quality and quantity are protected to the fullest extent of the law. 

If you have any questions or thoughts to share on this ruling or our Smith River efforts, please contact me. 

Sincerely, 

David Brooks 

News

BLM Issues Mineral Withdrawl for Zortman-Landusky

by Bill Pfeiffer

Sometimes withdrawing federal lands from mining claims is the right tool to protect precious places. That’s certainly the case with the recent announcement by the Bureau of Land Management (BLM) to protect the Fort Belknap Indian Community (FBIC) and surrounding lands from further mine devastation through a mineral withdrawal around the former Zortman-Landusky mine. Clean water, indigenous culture, fish, wildlife and human health are all too valuable to risk for the profits of global mining companies. While mining is important, it’s not the right use of resources everywhere. This mineral withdraw recognizes that fact.

Acid mine drainage at Zortman-Landusky.
Acid mine drainage at Zortman/Landusky, September 2021

Many know the history of water pollution near the Zortman-Landusky mine. The company that operated the mine, Pegasus, declared bankruptcy, leaving streams in the Fort Belknap Indian Community dewatered and degraded by acid mine drainage. This extensive damage will require expensive water treatment in perpetuity. Montana taxpayers are stuck with millions of dollars of the cleanup and water treatment costs, while the land, water and cultural resources suffer.

In order to protect the Fork Belknap Indian Community and the surrounding environment from more damage, the BLM withdrew an area around the Zortman-Landusky mine from mineral claims. The mineral withdrawal area was up for renewal in 2022. Because of additional need for cultural and ecosystem protection, the BLM listened to the Fork Belknap Indian Community, MTU, our partners, and the public to renew and expand the mineral withdrawal boundary.

MTU is proud to support the Fort Belknap Indian Community and our partners in this wise decision by the BLM. As Fort Belknap Community Council President Jeffery Stiffarm put it, “Good things come to good people! That’s what this team is! Thank you for everything you have done for Fort Belknap!!!” Right back at you President Stiffarm and everyone who championed this effort.

We’d also like to give extra thanks to our partners who worked on this effort, EarthWorks, Montana Environmental Information Center and EarthJustice and all those who spoke up for clean water and environmental justice for the Fort Belknap community. Read the BLM’s press release HERE.

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

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.