1st Victory
Because part of the mine was on federal land administered by the BLM, the groups filed a federal appeal on September 13, 1990. They challenged the BLM’s part of the decision to the Interior Department’s administrative tribunal, the Interior Board of Land Appeals (IBLA). They alleged violations of the Endangered Species Act, National Environmental Policy Act, and the Migratory Bird Treaty Act.

The IBLA took 2 1/2 years to issue its ruling, finding in part for the BLM and in part for the groups. Most important, the IBLA agreed that the reclamation plan was deeply flawed, but instead of remanding it to the agency for a different finding, it required the BLM to increase the reclamation bond by $443,000. It did this even though federal land comprised only 10% of the increased disturbance. (The BLM has since traded the public land to the company so it is no longer involved in the project.)

2nd Victory
The IBLA decision left the groups with no alternative but to sue the Montana Department of State Lands (now Department of Environmental Quality) in state court for violating state reclamation laws and the Montana constitution. The suit was filed in March 1992.

The State asked the court to dismiss the constitutional claims, promoting an arcane legal theory that the constitutional provisions are not “self-executing.” In other words, it is up to the legislature and not the courts to interpret and enforce them. Helena district judge Thomas Honzel denied the motion in December 1992. In his order he said: “Therefore, if the legislature has failed to provide effective requirements and standards for reclamation, or if DSL, the agency in charge of the project, has allowed the project to proceed without effective reclamation requirements and standards, Plaintiffs should be able to pursue their claim.  The constitutional provisions at issue here are not merely advisory. They mean something.” (emphasis added)

3rd Victory
An oral argument on the suit itself was held in March 1994. In September 1994, in a landmark ruling, Judge Honzel decided for MEIC and the other groups. He ordered DSL to prepare an EIS and declared unconstitutional the section of the State’s reclamation law that exempted open pits from being reclaimed.  Because the constitution says “all lands disturbed by the taking of natural resources shall be reclaimed,” the legislature had violated it by exempting open pits. Honzel also ruled that DSL’s decision to prepare only an EA rather than a more detailed EIS was “arbitrary, capricious and illegal.”

4th Victory
Golden Sunlight then successfully persuaded the 1995 Legislature to change the language in the law. It was not an effort to comply with the judge’s order, but rather to try and thwart the order. The changes made in the open-pit reclamation exemption were semantic, simply changing the criteria for exempting open pits from reclamation. Then-governor Marc Racicot signed the bill into law.

The EIS was finally finished by the State in April 1998, four years after Judge Honzel issued his ruling. The EIS found that two reclamation plans were feasible. They were the “No Pit Pond” alternative and the “Partial Pit Backfill” alternative.

The Record of Decision issued thereafter stated that the preferred alternative from a reclamation standpoint was the Partial Pit Backfill alternative. However, department director Mark Simonich chose the No Pit Pond alternative solely because it would be less expensive for the company.

In September 1998 the groups amended their suit and challenged Simonich’s decision. In February 2000 Judge Honzel again ruled against the State and Golden Sunlight Mine. He said that DEQ’s decision to adopt the least effective reclamation approach analyzed in the EIS ran afoul of even the new statute, which said reclamation that is feasible is to be adopted. Honzel found that the plain English definition of “feasible” meant “capable of being carried out with a reasonable assurance of success.” He wrote: “. . .the record shows that DEQ violated the MMRA . . . when it imposed the no pit pond alternative over the partial pit backfill alternative. Since both were deemed technically feasible, DEQ erred in imposing the no pit pond alternative when its own analysis showed that the partial pit backfill alternative would revegetate more acreage and better blend the pit area with the appearance of the surrounding natural system. In addition, the partial pit backfill alternative will result in less acid mine drainage, further protecting the groundwater reserves around the Golden Sunlight Mine. . . . There is nothing in the constitution or the MMRA which allows a reclamation decision to be based on a threshold determination of whether a mine operator will make a profit. Yet that is the premise DEQ started with in its analysis of the partial pit backfill alternative."

5th Victory
In a special session of the legislature called a few months later in 2000 (for an unrelated purpose), Golden Sunlight succeeded in having the legislature expand the call of the session in order to rewrite the reclamation statute once again. The new language prohibited DEQ from requiring any backfilling of open pits except under extremely limited circumstances. Those circumstances do not occur at Golden Sunlight and thereby support Simonich’s prior decision. And, again, Racicot signed the change into law.

Arguably, the most pernicious aspect of this bald-faced maneuver was that the changes were written to apply retroactively and to require DEQ to adopt the No Pit Pond alternative at Golden Sunlight. Never mind the constitution.

MEIC and the other groups amended their suit once again. The hearing before Judge Honzel last December, which was described at the beginning of this article, was on the latest challenge.