Conservation Groups Challenge Governor’s Office on Unfulfilled Records Request

Helena, MT – Today, the Montana Environmental Information Center and Earthworks filed a lawsuit in State District Court against the Governor’s Office and the Montana Department of Administration (DOA) for failing to provide documents in response to a request for public records.

In November, the organizations requested a number of documents, including communications between Governor Greg Gianforte and Hecla Mining Corporation, including its CEO, Phillips S. Baker Jr. The organizations also requested documents regarding the Gianforte Administration’s influence over the enforcement of the “Bad Actor” case filed against Hecla and Baker in 2018, which was dismissed last summer.

“We have a fundamental, constitutional right to examine the records of state government in Montana, including any communications that the Governor’s office may have had with Hecla Mining,” stated Anne Hedges, Director of Policy and Legislative Affairs with the Montana Environmental Information Center. “As the old saying goes, sunlight is the best disinfectant for mold in government. The public should know whether the Governor dropped the Bad Actor matter at the request of an Idaho-based mining company and left Montana taxpayers and sovereign Tribes holding the bag.”

“Too many people are still living with the severe pollution left behind by these defunct mines. It’s important to know what communications occurred between the Governor’s Office and Hecla’s CEO before the Administration flip-flopped and dropped the Bad Actor enforcement case,” said Bonnie Gestring, Northwest Program Director at Earthworks. “Thankfully, Montana’s constitution gives us the right to review these public documents in a timely manner.”

The records requests were submitted to both the Office of Governor Greg Gianforte and DOA on November 29, 2021, seeking any and all documents, records, emails and other communications related to the enforcement of the Bad Actor provision and communications between the Governor, Hecla Mining Company and its CEO Phillips S. Baker Jr. More than 100 days have passed since the records request was filed, but no information has been provided by either office to the public. Notably, DOA has explicitly stated that it will not furnish the requested records. The Department’s response is in stark contrast to DOA’s actions over the past year, where it was able to immediately produce judicial emails in response to a subpoena. That subpoena sought “all emails and attachments” and “any and all recoverable deleted emails.” DOA subsequently produced more than 5,000 emails in less than 24 hours.

The conservation organizations are represented by the law offices of Morrison, Sherwood, Wilson, & Deola, PLLP.

Background:

Phillips S. Baker Jr. served as the Vice President and Chief Financial Officer for Pegasus Gold when it filed for bankruptcy in 1998 and abandoned its operations at the Zortman-Landusky, Beal Mountain, and Basin Creek gold mines. The defunct company left the State of Montana with tens of millions of dollars in cleanup costs. 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.

The Bad Actor law is intended to prevent mining executives and companies from receiving a new permit to mine in Montana if they’ve failed to clean up past operations or reimburse the state for those cleanup costs. The law was enacted during the 2001 legislature with overwhelming bi-partisan support and was signed by former Governor Judy Martz.

Baker, now serving as the CEO of Hecla Mining Company, is proposing two massive new copper/silver 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 proposed mining projects threaten to destroy an area of unparalleled ecological integrity and of deep cultural significance to the Kootenai Tribe.

DEQ filed a Bad Actor enforcement action against Hecla Mining Co. and Phillips S. Baker in March 2018 for Baker’s failure to clean up past Montana mining messes during his time as a senior executive of Pegasus Gold. In July 2021, after the State District Court ruled that DEQ did indeed have jurisdiction over Baker and the Idaho-based mining company, DEQ announced it was dropping the case, citing the election of a new governor. DEQ also cited the cost of litigation, despite the fact that Montana constitutional lawyer, Jim Goetz, was representing DEQ pro bono.

In response to this decision, Fort Belknap Indian Community, the Confederated Salish and Kootenai Tribes, Ksanka Elders Advisory Committee, and a number of conservation groups took legal action last fall to compel DEQ to fulfill its legal duty to enforce the “Bad Actor” law against Hecla and Baker.