Conservation groups join DEQ in fight against ‘bad-actor’ mining exec

The Montanore mine would extract copper and silver from beneath the Cabinet Mountains Wilderness west of Libby. (Laura Lundquist/Missoula Current)

Conservation groups have joined the Montana Department of Environmental Quality in a fight against a mining company president, and two tribes are likely to follow.

This week, Earthjustice attorneys asked a judge to allow the tribes and conservation groups to intervene on behalf of the state DEQ in its “bad actor” case against Helca Mining Company CEO Phillips S. Baker Jr.

Baker has revived Hecla’s efforts to develop the Rock Creek mine near Noxon and the Montanore mine near Libby, which would extract copper and silver from beneath the Cabinet Mountains Wilderness in northwest Montana.

In October, the conservation groups alerted DEQ to Baker’s violation of the bad-actor law in an enforcement request supported by the Fort Belknap Indian Community and members of the Ksanka Crazy Dog Society.

The conservation groups include Earthworks, the Montana Environmental Information Center, the Clark Fork Coalition, Rock Creek Alliance, Save Our Cabinets and Montana Conservation Voters.

In the past, they have argued against the mines out of concerns for groundwater and how it’s possible depletion might affect threatened bull trout.

This early involvement likely gives them a right to intervene in the case, according to Monday’s filing.

Apparently, the judge agreed.

When they filed their request, the Earthjustice attorneys were unaware that just a few hours earlier, Lewis and Clark County District Judge Mike Menahan had already mailed out a ruling approving the conservation groups’ right to intervene, based upon an April request in the opposing case that Monatore Minerals Corp., Troy Mine Inc. and RC Resources Inc. had filed against DEQ on March 20.

On March 20, DEQ had sent Baker a letter of violation, which was an administrative action informing him of DEQ’s investigation and requesting information.

Now the only question is whether the judge will allow the Fort Belknap Indian Community and the Ksanka Crazy Dog Society to intervene also.

Andrew Werk Jr., president of the Fort Belknap Indian Community Council, said the former Pegasus official should not be allowed to profit from new mines while his people continue to struggle with the mining pollution Pegasus left behind at the Zortman and Landusky sites.

“Pegasus has caused irreparable damage to waters flowing into Swift Gulch and into Little Peoples Creek.  Acid mine drainage continues to migrate downstream.  Waters in Swift Gulch and other drainages will have to be treated forever.  Pegasus and its directors must be held accountable.  We are proud to support DEQ’s action in this case and applaud the agency for taking a stand to protect Montana’s waters and environment by enforcing the bad actor law,” Werk said.

Earthjustice Katherine O’Brien said the ruling on the conservation groups was positive.

“My hope is that we’ll get a ruling soon on the tribes,” O’Brien said.

On Thursday, Hecla filed a motion to have the DEQ lawsuit dismissed. If the judge rejects that, he could chose to hear both cases together in summary judgment.

A few weeks ago, DEQ sued Baker – in addition to Montanore Minerals Corp. and RC Resources Inc. – following an investigation that found he qualified as a bad actor because of what his former company failed to do at other Montana mines.

Before he was the HECLA CEO, Baker was the top financial official for Pegasus Gold Inc., and served as a principal officer for several of its subsidiaries when it declared bankruptcy in 1998.

After declaring bankruptcy, Pegasus defaulted on its reclamation obligations at the Zortman-Landusky, Beal Mountain, and Basin Creek mines in Montana, forcing DEQ to shoulder the companies’ cleanup responsibilities.

Public agencies have spent more than $35 million to clean up the Zortman-Landusky mines alone, which have contaminated the water of the Fort Belknap Reservation. The DEQ predicts that water treatment, which must be maintained indefinitely, will cost Montanans more than $2 million annually.

Partly as a result of the Pegasus default on reclamation, the 2001 Legislature added the bad-actor clause to Montana’s Metal Mine Reclamation Act, prohibiting officials of uncompleted reclamation efforts from starting new projects.
DEQ Director Tom Livers has said Baker must repay the state’s cleanup costs of the Pegasus mines or else show that no company under his control is involved in mining or exploration activities in the state.

Baker has argued that he wasn’t in charge of Pegasus and there’s not link between Pegasus and HECLA so the bad-actor clause shouldn’t apply.