Gianforte administration makes wrong move on bad actor suit

September 7, 2021

By: JAMES C. NELSON

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.

Testing water quality from the abandoned Zortman-Landusky Mine near the Fort Belknap Reservation, home to the Assiniboine and Gros Ventre Tribes

In fulfillment of that 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 fundamental constitutional rights guaranteed to all Montanans.

This right has been honored only in the breach by many. Sadly, this time it is being brushed aside by the very agency charged with safeguarding Montana’s environment: Montana’s Department of Environmental Quality (DEQ).

DEQ administers Montana’s Metal Mine Reclamation Act (MMRA). 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 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 bipartisan backing and the support of the mining industry and signed by Gov. Judy Martz in 2001.

In short, if a 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 Co. Mr. Baker was formerly vice president and CFO of Pegasus Gold Inc., which, in 1998, went bankrupt and left 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 bonus that taxpayers will be paying millions of dollars in perpetuity to treat water from these abandoned mines.

Cliff Lake in the Cabinet Mountains Wilderness, where Hecla wants to open two new massive underground mines
Photo by Randy Beacham

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

Then suddenly, in July, the DEQ announced it was dropping its case. What changed? Montana’s governor, that’s who. Gov. Gianforte has made no secret of his support for Hecla’s proposed mining projects. And lo and behold, less than a year into his term, Gianforte’s DEQ reversed course and backed off its “Bad Actor” enforcement claim.

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 cleanup bill. 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 again. The miner comes in with promises of jobs and benefits; he opens a mine and takes the resources, and when the mine is no longer profitable, he goes bankrupt and leaves a toxic wasteland for the taxpayers to clean up.

Justice Jim Nelson

Indeed, the Bad Actor law was passed in the wake of Pegasus’ bankruptcy. 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, Montanans 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!

Justice James Nelson is a retired Montana Supreme Court Justice.  This opinion piece was originally published in the Montana Standard, Aug. 29, 2021

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