[Editor’s note: Recently, a district court judge struck down the state of Montana’s decision to grant a water use permit for the Montanore Mine, dealing a third critical blow to the Hecla company’s plans to mine the Cabinet Mountains Wilderness. The decision follows a similar court ruling in April 2019, whereby a Montana district court struck down another water use permit, this time for the Rock Creek Mine, which is also located in the pristine Cabinet wilderness. Both decisions come after the state’s Department of Environmental Quality blocked Hecla’s mining plans in 2018 by invoking the bad actor law, which helps ensure that serial polluters can’t make messes and then stick communities with the cleanup costs. In the last legislative session, the bad actor law survived a series of attacks intent on weakening the law in the state. The fight continues.]
Below is the story of Montana activist Tim Flynn, who’s working with his local community to advocate for the continued enforcement of the bad actor law.
Montana fishing guide Tim Flynn is a man determined to rally folks around a straightforward principle: Mining companies shouldn’t pollute communities and public lands and then force the public to pay for the cleanup. When companies do pollute, they should be barred from opening new mines in the state until they pay for their old messes.
Flynn’s jovial spirit and deep roots in the Treasure State come in handy these days as he takes this message to residents whose families have bled copper and gold for generations.
He also has the law on his side, as the Montana legislature has codified this sentiment in the “bad actor” provisions of its state mining law. The legislation prohibits mining executives whose companies fail to complete required mine reclamation from undertaking new mining projects in the state — unless and until they rectify the mess and pay back the cleanup costs, with interest. But the law has largely gathered dust since it was first enacted — enforced only once in 2008 against a small mining operation.
Today, its true mettle is finally being put to the test.
Earthjustice, representing groups like the Clark Fork Coalition — for which Flynn serves as the board’s vice president — and in partnership with members of the Ktunaxa Nation, successfully petitioned Montana’s regulators in March to enforce the law against Phillips S. Baker Jr. and the company he now runs. A former top official of serial polluter Pegasus Gold, Baker now serves as president and CEO of Hecla Mining Company. Hecla is pushing to develop two massive copper and silver mines beneath the Cabinet Mountains Wilderness, which holds sites that are sacred to the Ktunaxa people and provides irreplaceable habitat for threatened grizzly bears and bull trout.
Hecla’s Montana subsidiaries challenged the regulators’ decision, and now the Montana Department of Environmental Quality has asked a court to rule that Baker cannot mine again in the state unless his former company’s messes are cleaned up and the state is repaid for the publicly-funded cleanup work carried out to date. On July 16, Earthjustice asked the judge to let the conservation groups, the Fort Belknap Indian Community and the Ksanka Crazy Dog Society, join the lawsuit on the regulators’ side.
As the parties prepare for court, a broader debate over the industry’s future is playing out in small towns like Butte, a former mining “company town.” There, locals like Flynn are pressing their communities to rally around the bad actor law and to rethink the long-held assumption that Montanans must mine — in any place and at any cost.
“How’s she go?” asks Flynn as he walks into the Met Tavern, a 1950s-era bar just outside downtown Butte that, legend has it, Evel Knievel once robbed by cutting a hole in the roof.
It’s a sunny Thursday afternoon and the dimly lit establishment is empty minus Robyn, the bartender and the tavern’s co-owner. But it’s not that way for long. A few minutes pass and former Montana lawmaker Fritz Daily pulls up, followed by a lanky older guy named Rocky and then a middle-aged married couple, all of them taking a seat at the bar. Flynn, whose family roots in the area date back to the 1880s, recognizes everyone, unsurprising given that he also waved familiarly to about every third person on the drive over here.
The topic today is the bad actor law, courtesy of Flynn, who has a knack for bringing up touchy subjects while keeping the mood cordial.
As longtime locals, the bar’s patrons are all too familiar with both the fortunes and fallout that mining companies bring to a community. After all, Butte was once known as “The Richest Hill on Earth” due to its vast copper, silver and gold resources. But like many mining towns, it eventually went bust. Though some mining remains, the industry’s presence today is mostly felt by what it’s left behind. Butte’s sleepy downtown is filled with historic buildings and streets with “gold” and “silver” in their names; a collection of black, triangle-shaped structures known as headframes that once lowered men into the mine’s abyss; and a toxin-filled, former open pit copper mine known as the Berkeley Pit, one of the largest Superfund sites in America. It’s also just one of the more than 8,400 abandoned mines scattered across the state, some of which continue to pollute streams and threaten public safety.
“Mining’s what made us, but it might be what destroys us, too,” quips Fritz.
After extracting their fortunes from Montana’s landscapes, many mining companies have left the public to deal with their mess.
One of the most notorious perpetrators of this “mine it, mess it up and run” strategy was Pegasus Gold, Baker’s former company. Baker served as the top financial official at Pegasus until shortly after the company declared bankruptcy in 1998. Afterward, Pegasus stuck taxpayers with tens of millions of dollars in cleanup costs at three abandoned cyanide heap-leach gold mines.
“That’s mining for ya,” remarks one of bar’s patrons. “Take everything you can … and leave the shit behind.”
As of January 2017, that “shit” includes a 70-acre, cyanide-contaminated leach pad left by Pegasus Gold at its Beal Mountain mine site. The cost to finish cleaning up the abandoned mine, which was once heralded as an “environmentally friendly way of doing business,” is estimated at nearly $40 million. This figure includes filtering cyanide and selenium out of the mine’s waste, in perpetuity, before it hits German Gulch Creek, which feeds into the icy blue Clark Fork River and is home to a critical population of native westslope cutthroat trout.
“Too often, the short-term economic gains of mining have outweighed permanent costs to the human environment,” says Flynn, who, in addition to serving as a local fishing guide, often cross-country skis and hikes on public lands near the abandoned mine.
At another of Pegasus’ abandoned mines, Zortman-Landusky, more than $74 million has been spent to date on reclamation and water treatment to address acid mine drainage that has contaminated culturally important sites of the Fort Belknap Gros Ventre and Assiniboine Tribes. Bright orange water contaminated with heavy metals runs through the Tribes’ ceremonial sites and powwow grounds and continues to run deeper into tribal land despite agency efforts to control it.
Outraged by the damage Pegasus left behind, the Republican-controlled Montana legislature voted in 2001 to strengthen and expand the bad actor provisions. Then-governor Judy Martz (R), a friend of the mining industry, signed the new provisions into law.
“The bad actor law offers a critical opportunity to hold the leadership of Pegasus Gold accountable for the unspeakable harm they inflicted on Montana’s communities and waters,” says Earthjustice attorney Katherine O’Brien. “And the effort to enforce it is bringing people together around a commonsense principle — that mining executives should not be given a license to profit from the state’s resources while the public continues to pay for the messes their past projects left behind.”
Important issues of accountability and the fate of the incomplete Pegasus Gold mine cleanups are not all that hang in the balance as the bad actor litigation moves forward in Montana. Whether Hecla can develop two mines in the Cabinet Mountains Wilderness also is at the heart of the controversy. Hecla acquired the two proposed mining projects — the Rock Creek and Montanore mines — in 2015 and 2016 respectively, but the fight to protect one of the region’s wildest places has been raging for decades.
Since the 1980s, one company after another has tried mining the Cabinets, a sliver of untouched beauty located in northwest Montana that was set aside by Congress in 1964 as one of the first protected areas under the Wilderness Act. Filled with glaciated peaks and valleys that run for 35 miles north to south, the mountains are home to wolverines, elk, bighorn sheep, bull trout, a critically important and highly imperiled grizzly bear population, and some of the purest waters in the lower 48. They’re also the aboriginal home of the Ktunaxa Nation, and tribal members continue to visit the area to gather traditional foods, perform spiritual ceremonies, and connect to the Tribe’s culture and history.
Earthjustice and its clients and allies have held the line for decades, successfully beating back each illegal proposal to mine beneath the Cabinet Mountains Wilderness. Now, their efforts to enforce Montana’s bad actor law have opened a new front in the fight to protect the Cabinets.
“When our tribe learned that Hecla had already been given permits to mine our sacred sites, I thought the fight was over,” says Velda Shelby, a Ktunaxa tribal member who opposes the mines. “But when Montana invoked [the bad actor] law against Baker and Hecla, I knew we had a responsibility to speak up. This issue has awoken a sleeping giant in our community, particularly among the elders.”
If upheld, the enforcement action against Hecla and Baker, who’s also the chairman of the National Mining Association, has the potential to send a powerful message that the state intends to protect its land, water and communities from mining companies that abuse the privilege of operating in Montana. That particular message couldn’t come at a more critical time, as entities like Hecla and the mining industry lobby hard on the federal level to roll back regulation of hard rock mines across the country.
But, says O’Brien, if the state backs down or a court overturns the state’s action, the message to mining companies would be: “Your cleanup obligations are just paper commitments. They don’t mean anything.”
And there’s always a chance that Montana’s legislators will try to roll back the bad actor provisions, which makes Flynn’s campaign to boost awareness and support for the law among the general public all the more important. [Editor’s note: Though the bad actor law survived attacks during the last state legislative session, anti-environmental legislators are still intent on rolling back the commonsense law. See below to take action on this important issue.]
Though many in Butte were quick to agree that mining companies shouldn’t be allowed to destroy Montana’s lands and waters and leave taxpayers holding the bag, the industry still holds significant political and economic sway in Montana. Even Flynn, whose own family history is linked to mining, is himself conflicted about whether mining proposals today offer a good trade-off. But when it comes to holding people like Baker accountable, his conviction is clear. He is incredulous that Baker, whose company burdened generations of Montanans with toxic pollution, is poised to mine the Cabinet Mountains.
“And then we’re gonna let him come and mine under a pristine wilderness area?” asks Flynn, gesturing to his bar mates.
“Aren’t we better than that?”
This piece was originally posted in July 2018 and updated to reflect the latest news.