Judge: Governor can’t withhold all bad-actor documents
Laura Lundquist
(Missoula Current) A Helena judge has ordered Gov. Greg Gianforte to release state documents related to the Hecla Mining Corporation and the administration’s 2021 decision to drop a bad-actor case against Hecla’s CEO.
On Friday, Lewis and Clark County District Judge Christopher Abbott ruled in favor of plaintiffs Montana Environmental Information Center and Earthworks, and ordered the Office of the Governor to release within six weeks internal documents requested by the plaintiffs in November 2021.
“The Governor is not above the law. We have a fundamental, constitutional right to know what the 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,” said MEIC executive director Anne Hedges in a release. “We’re happy to see the judge protect our constitutional right to know, and look forward to the Governor’s office releasing public records.”
The public-records requests sought all documents related to the Montanore and Rock Creek mines; all communications between the Governor’s Office and Helca Mining or its CEO, Phillips S. Baker, Jr.; and all documents related to Montana’s Bad Actor provision.
In 2001, the Montana Legislature added “bad actor” provisions to the state Metal Mine Reclamation Act. The provisions bar any mining company or company leader that defaults on their cleanup responsibilities from receiving any additional permits to mine in Montana.
In 2018, the Montana Department of Environmental Quality found that Baker fit the description of a bad actor, having been the chief financial officer of Pegasus Gold Incorporated from 1994 to 1998. Pegasus Gold operated three cyanide heap leach gold mines in Montana: the Zortman Landusky Mine near the Fort Belknap Reservation, the Basin Creek Mine near Helena, and the Beal Mountain Mine near Butte.
In 1998, Pegasus Gold declared bankruptcy without having reclaimed the mines, so the expensive cleanup was left up to Montana taxpayers.
DEQ pursued three years of legal work against Baker under the Bullock administration but dropped its case in July 2021 after Gianforte took office. DEQ Director Chris Dorrington, Gianforte’s appointee, said the lawsuit wouldn’t yield any reimbursement so DEQ wouldn’t enforce the bad actor provision.
That led to the plaintiffs' the public records request and a lawsuit to require DEQ to enforce the bad-actor provisions.
At first, the Governor’s Office didn’t respond to the records request. Two months later, in January 2022, the Governor’s general counsel said it would look into the request. Finally, after two more months, the Governor’s Office refused to provide any documents, saying the requested material was related to MEIC’s lawsuit against the DEQ regarding the bad-actor policy and therefore should be covered by attorney-client privilege.
That prompted MEIC and Earthworks to sue for the documents on March 15, 2022.
MEIC and Earthworks asked for a writ of mandamus, which is where a judge provides a ruling to compel an entity - the Governor’s Office in this case - to perform a clear legal duty, one that has been delayed too long. In his ruling, Abbott said his belief is that writs are “extraordinary” remedies that should seldom be granted, but this was one of the few cases where it was appropriate.
Citing the section of the Montana Constitution that guarantees a citizen’s right to know and the duty of government officials to make all records and proceedings open to public scrutiny, Abbott rejected the Governor’s claim that the administration could withhold records if they could potentially be acquired through the discovery process of an existing lawsuit.
Abbott admitted that the government is allowed some discretion to withhold certain documents that may violate someone’s privacy or other privileges. But the Governor’s Office withheld everything, not even bothering to go through an evaluation process, which violated the government’s clear duty.
“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 a document-by-document review is not,” Abbott wrote. “The Governor has a clear, legal, and ministerial duty to conduct a timely review.”
No case law prevents documents from simultaneously being accessed through a public records request and the legal discovery process, Abbott said. The assumed intent of the records request doesn’t invalidate the right to know.
“There is no basis for concluding, as the Governor seems to do, that the right to know turns on the subjective purpose of the request,” Abbott wrote. “Indeed, this Court suspects many public records requests are made for more self-interested purposes than the public interest."
Finally, Abbott pointed out that the discovery process wasn’t a speedy alternative to a records request. It’s time-consuming, expensive and doesn’t necessarily produce documents that “may be embarrassing to the government or valuable from a political or policy standpoint,” Abbott wrote.
Although he ordered the governor to produce all the requested public information within six weeks, Abbott said some documents could be withheld if they met a legal bar and were accompanied by a detailed privilege log explaining the reason.
Based upon what happened with the Pegasus Gold mines, the plaintiffs are concerned about the damage and pollution that could result from Hecla’s two massive silver mines proposed adjacent to and beneath the Cabinet Mountains Wilderness in northwestern Montana. They don't want Montana taxpayers left holding the bag again.
“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, Earthworks Northwest Program director. “Montanans are still living with the severe pollution left behind by these defunct mines. There should be full disclosure from the Governor’s office.”
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.