Watchdog sues Lincoln County over withheld documents
Laura Lundquist
(Missoula Current) A watchdog group is suing Lincoln County for documentation as to why the Board of Commissioners asked the state to loosen water quality standards in Lake Koocanusa this summer.
On Friday, the Montana Environmental Information Center, a nonprofit organization, filed a complaint in Lincoln County District Court asking the judge to require Lincoln County to release public records that MEIC requested more than six months ago. Under Montana’s Constitution, the public has a right to know, except under exceptional circumstances, what governmental bodies, such as county commissions, are doing and that right extends to the documents involved in commission decisions.
In this case, Lincoln County filed a petition on June 2, asking the Montana Department of Environmental Quality to increase the water quality standard for selenium concentration in Lake Koocanusa to 1.5 micrograms per liter. In December 2020, DEQ had approved a selenium standard of 0.8 micrograms per liter and the Environmental Protection Agency approved it in 2021.
In its complaint, MEIC pointed out a problem with the timing because the petition was submitted to DEQ two days before the Lincoln County commissioners voted to approve it. Then, the minutes from the June 4 commission meeting said the commissioners had approved the petition “based upon the documents provided,” but no documents were included in the minutes.
On July 9, MEIC emailed a request and submitted a public information request form to the Lincoln County Clerk and Recorder and the county attorneys for all documents and information related to the petition.
On Aug. 13, when DEQ held a public hearing on the petition, about a dozen people, including area outfitters, opposed the proposal and the only proponent was Lincoln County Commissioner Noel Duram. On Sept. 2, DEQ denied the petition.
In the meantime, MEIC had still received no no response from the Clerk and Recorder, so they followed up on Aug. 28, asking for the documents or an estimate of when they might expect the information. Again, MEIC received no response. So after six months, MEIC has now turned to the courts.
“We’re in the business of holding our elected officials and corporations accountable,” said Derf Johnson, MEIC deputy director, in a statement. “When our public resources are offered up as sacrifice to a foreign, for-profit corporation with a history of polluting and leaving a mess, we definitely want to know what happened behind the scenes.”
Northeast of Libby, Lake Koocanusa is a reservoir that straddles the U.S-Canada border and is fed by four rivers flowing down out of British Columbia, Canada, including the Elk River. Elk Valley Resources, formerly Teck Resources, owns five coal mines in the Elk River watershed that have been leaching selenium and nitrogen into the Elk River and subsequently Lake Koocanusa for decades.
In July 2024, Glencore, a Switzerland-based multinational commodities trader, received approval from the Government of Canada to acquire a 77% interest in Elk Valley Resources from Teck Resources for $9 billion.
Selenium is an essential nutrient for humans in trace amounts, but larger amounts are devastating to aquatic species, causing deformities and reducing reproduction. The pollution in the Koocanusa Reservoir is disfiguring native westslope cutthroat trout and whitefish and threatens endangered White Sturgeon residing in the Kootenai River that flows out of the reservoir and eventually into Idaho. Idaho’s Clean Water Act report lists the Kootenai River as impaired for selenium, and sampling in 2019 found mountain whitefish with selenium levels in their reproductive organs that exceeded EPA limits.
Studies show about 95% of the selenium in Lake Koocanusa comes from the Elk River and concentrations already exceed the 0.8 micrograms per liter water-column standard. In November 2021, British Columbia proposed a selenium standard of 0.85 micrograms per liter for Canada’s portion of Lake Koocanusa.
After DEQ approved the standard of 0.8 micrograms per liter in December 2020, Elk Valley Resources and Lincoln County petitioned the Montana Board of Environmental Review, asking it to reject DEQ’s standard because it’s more stringent than federal standards. Normally, state standards can’t be more stringent, but site-specific standards like the one for Lake Koocanusa can be if they’re calculated using EPA-approved methods.
In April 2022, the Board of Environmental Review - made up of citizen members that had been recently appointed by the incoming Gianforte administration - ignored DEQ’s analysis and ordered DEQ to start a new rule-making process. Instead, DEQ provided written justification for the 0.8 concentration limit.
Those actions have landed in state district court. DEQ has sued the Board of Environmental Review for overstepping its authority. Under the law, the board can only direct DEQ to reconsider a decision and DEQ must then decide what the next steps are. In addition, some intervenors, including the Clark Fork Coalition, joined DEQ's lawsuit and are challenging the ruling that the 0.8 concentration is “more stringent.”
Lewis and Clark County district judge Kathy Seeley heard oral arguments on July 29, but has yet to issue a ruling. So Johnson questioned the timing of Lincoln County's petition.
Meanwhile, at the behest of the Confederated Salish and Kootenai Tribes, the four Ktunaxa First Nations of Canada and the Kootenai Tribe of Idaho - collectively called the Transboundary Ktunaxa Nation - the International Joint Commission has started studying the selenium pollution that crosses the border. A draft study is due by September.
The Commission is an independent body that was created in 1910 to monitor any water pollution crossing the U.S-Canada border as required by the Boundary Waters Treaty ratified by President Howard Taft. The treaty was incorporated into U.S. law and has never been amended.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.