Recent Ruling Allows DEQ to take Action Against Out-of-State Bad Actors

• Moira Davin
• July 14 2021

HELENA—A recent ruling allows the Montana Department of Environmental Quality (DEQ) to have personal jurisdiction over out-of-state bad actors in the future.

“The personal jurisdiction ruling is a win for DEQ to be able to pursue out-of-state bad actors,” said DEQ Director Chris Dorrington. “To be clear, whether in state or out-of-state, bad actors cannot leave Montanans with the bill to clean up their messes.”

The “bad actor” provision within Montana’s Metal Mine Reclamation Act is intended to prevent mining professionals and companies from getting new Montana mining permits if they are responsible for incomplete reclamation of mining in the past. The ruling ensures DEQ has jurisdiction over bad actors who are out of state, but operating or involved with mining in Montana.

DEQ filed a lawsuit in 2018 against Hecla Mining Company and its president Phillips Baker Jr., asking for Baker to be removed from Montana mining projects. Baker is tied to previous mining projects in Montana, such as the Zortman-Landusky Mine that was left unreclaimed by the bankrupt Pegasus Gold company.

After careful analysis, DEQ has decided not to pursue the case further. Today, DEQ filed a motion to dismiss due to a number of factors including complex, procedural hurdles that complicate the case and potentially risk DEQ’s ultimate goal of preventing bad actors from operating in Montana.

“In our role as a state environmental agency, we have to make tough decisions in order to make the best use of state resources while also achieving our mission,” Dorrington said. “I am committed to pursuing other avenues, including legislation. Changing the law is the best way to ensure it is clearer and easier to go after bad actors in the future. Legislation not only provides opportunity for public input, but would also apply to all parties operating throughout the state, rather than one company. DEQ has a track record of gaining bipartisan support on laws that strengthen protections.”

One of DEQ’s goals with this case was to seek reimbursement for reclamation costs at the Zortman-Landusky Mine. Pegasus Gold, which Baker was affiliated with, operated the Zortman-Landusky Mine that required state-funded reclamation after it was determined the site was under bonded. Since the 1970s, the state has made significant improvements in operations and bond calculations to ensure mines stay in compliance, are adequately bonded and can be reclaimed without using taxpayer dollars.

“At this time, it seems highly unlikely the case would result in reimbursement,” said Dorrington. “In choosing to dismiss this case, I want Montanans to know that DEQ is not stepping away from continuing to seek reimbursement of these costs and we are not backing down from our commitment to holding bad actors accountable for their actions.”

DEQ’s enforcement process ensures mines follow the Metal Mine Reclamation Act. If a mine is out of compliance, DEQ initiates and follows through on a violation process. As an example, DEQ recently sent a violation letter to the Montana Tunnels Mine in Jefferson City for failure to reclaim, failure to post adequate bond and failure to conduct water monitoring as required.

DEQ has carefully reviewed the status of the mining projects related to this case including the Troy Mine, the Montanore Mine Project and the Rock Creek Mine Project. All three sites are currently in compliance with the Metal Mine Reclamation Act and Hecla has established a positive track record of good mining practices and reclamation. The Troy Mine is undergoing final reclamation and the other two projects sponsored by the Hecla Mining Company are not authorized to mine.

DEQ’s permitting process includes an intensive environmental review and application of the best available science. No operating permits are issued without substantive public involvement.