Media Contact:
Bonnie Gestring, Earthworks, 406-546-8386, bgestring@earthworks.org
Anne Hedges, Montana Environmental Information Center, 406-443-2520, ahedges@meic.org
Helena, MT – On Friday, June 23, Montana District Court Judge Christopher Abbott ordered the Office of the Governor of Montana to release internal documents regarding the decision of the Gianforte Administration to drop a mining enforcement case against a designated “bad actor” under Montana’s hardrock mining act. The records were originally sought by the Montana Environmental Information Center (MEIC) and Earthworks. The groups filed a lawsuit in State District Court in March 2022 against both the Governor’s Office and the Montana Department of Administration (DOA) for denying access to the records.
In denying the Governor’s office request to withhold documents from the public, the court ruled, “The Governor’s Office, like any other public body, has a clear legal duty under the Constitution and the implementing statutes to honor public records requests regardless of the purpose to which disclosure will be put. While the decision whether to withhold any particular document may involve an exercise of discretion, the decision not to produce anything at all without doing that document-by-document review is not.”
“The Governor is not above the law. We have a fundamental, constitutional right to know what government is up to, especially when it regards this administration’s failure to enforce the law against bad actors who have cost the state tens of millions of dollars,” stated Anne Hedges, Director of Policy and Legislative Affairs with MEIC. “We’re happy to see the judge protect our constitutional right to know, and look forward to the Governor’s office releasing public records.”
In November 2021, 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 at the request of DEQ in during Summer 2021.
“We’re heartened by the court’s decision to uphold these constitutional rights and shine a light on any communications between the Governor’s office and Hecla’s CEO,” said Bonnie Gestring, Northwest Program Director at Earthworks. “Montanans are still living with the severe pollution left behind by these defunct mines. There should be full disclosure from the Governor’s office.”
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. The Gianforte Administration refused to provide any of the documents relating to the matter. In his order, the judge issued a writ of mandamus, ordering the Governor’s office to release the records within six weeks.
The conservation organizations were represented by Kim Wilson and Rob Ferris-Olsen with the law office 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 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. That case is ongoing.