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October 28, 2021

In a Victory for Clean Water in Montana, Judge Rules that Montana DEQ Failed to Protect Water Near Rosebud Coal Mine

Victory: Victory for clean water in Montana

Contacts

Shiloh Hernandez, Earthjustice, (406) 586-9699

Erik Schlenker-Goodrich, Western Environmental Law Center, 575-751-0351

Bozeman, MT

In an important victory for clean water in Montana, a Montana district court judge ruled on Thursday that the Montana Department of Environmental Quality (DEQ) repeatedly ignored the law and failed to protect water quality from an expansion of the Rosebud coal strip mine near Colstrip, one of the largest coal strip mines in the nation. Western Environmental Law Center, Earthjustice, Roger Sullivan, and Walton Morris represented the Montana Environmental Information Center and Sierra Club in this case.

The judge ruled that Montana’s laws governing strip mining (the Montana Strip and Underground Mine Reclamation Act) prohibit DEQ from allowing strip mining if the mining company cannot assure that water resources will be protected. In fact, the court found that DEQ and the Board of Environmental Review ignored existing contamination in a stream that runs next to the mine, failed to consider the impacts from other mine expansions on that same water body, and illegally forced the public to prove that the mine expansion would harm water quality instead of requiring the mining company to prove that it would not harm water quality.

The Rosebud strip mine is polluting Montana’s waters, specifically East Fork Armells Creek. The creek is so polluted that DEQ has deemed it impaired and in violation of water quality standards.

By law, when a creek is impaired, DEQ may not allow more pollution into the creek until it prepares a plan to clean up the creek. DEQ ignored this duty entirely when it approved an expansion of the Rosebud strip mine that, DEQ itself found, would extend the creek’s impairment for “tens to hundreds of years.” In an extremely detailed opinion, Montana's 16th Judicial District Court held that DEQ’s various inconsistent arguments attempting to excuse its continued neglect of water pollution were arbitrary and capricious, in violation of the state strip mining law. The court remanded the matter to DEQ to follow the law.

“The court’s well-reasoned decision concludes that DEQ’s excuses for failing to protect Montana’s water don’t, in fact, hold water,” said Shiloh Hernandez, an attorney with Earthjustice, the law firm that represents plaintiffs. “DEQ now has a second chance to follow the law. We intend to hold the agency to its legal duty.”

“After years of Sisyphean administrative engagement, the district court’s decision finally holds DEQ accountable and requires it to fulfill its legal duty as a guardian of Montana water quality,” said Erik Schlenker-Goodrich, executive director of the Western Environmental Law Center. “The court’s order sends a clear message to MDEQ that continuing to put the interests of industry over Montana’s most important resource and the people who use it will not fly.”

“Once again, the state agency that is charged with protecting water quality chose to protect a mining company that has been polluting area waters for decades,” said Anne Hedges, Director of Policy for the Montana Environmental Information Center. “High levels of salts in water are harmful to agriculture and the environment. Yet DEQ allowed a substantial increase in salt levels in a water body that is already overloaded with salts. Montana’s waters and the people who rely on them deserve better. That’s why there are laws on the books to protect water quality from mining. Instead of following the law or requiring cleanup of the contamination, DEQ has spent the last decade protecting a polluter at the expense of all of those who rely on the waters of Montana.”

“Clean water is our lifeblood here in Montana,” said Summer Nelson, Director of Sierra Club’s Montana Chapter. “The proposed expansion of the Rosebud coal mine would increase existing stream pollution and simply fail to protect vulnerable aquatic life from more pollution.”

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