by Derf Johnson
MEIC exists on the edge of government and its operations. If you boil down our day-to-day work, a substantial portion is the pick-and-shovel work of document review in order to hold the government accountable. It requires regular communication with government officials, accessing and reviewing enormous volumes of documents, attending meetings, and lobbying state officials. Quite simply, this is how we do our jobs. It’s certainly not always glamorous or something we slap on a glossy fundraising letter, but it’s an incredibly important aspect of how MEIC protects our land, water, and climate.
Thankfully, in Montana, we are afforded with strong constitutional rights that guarantee the public access to government. Specifically, Article II, Sections 8 & 9 guarantee the public an “opportunity for citizen participation in the operation of the agencies” and “the right to examine documents or to observe the deliberations of” the government. We use these rights to assure that we understand the implications of everything from rulemakings to permit decisions to draft legislation. Without it, we’d be left in the dark on incredibly impactful decisions and issues that will have serious consequences. When push comes to shove, we also defend these rights in court.
Case in point: back when Steve Bullock was governor, the Montana Department of Environmental Quality (DEQ) declared that Hecla Mining, the owner of the proposed Montanore Mine (see article on pg. 22), was a “bad actor.” Hecla’s CEO was a former executive of Pegasus Gold, the company that left a number of underbonded toxic disasters across the state and declared bankruptcy. The Bullock Administration was even sued by Hecla for this designation had to defend itself right up until Gov. Bullock left office. Once Gov. Greg Gianforte came into office, DEQ dropped the case. Why would Montana’s government let a “bad actor” company off the hook when it causes tens of millions of dollars in taxpayer funds to go to reclamation that the company caused and then failed to reclaim?
Something smelled, and MEIC submitted a records request to the Governor’s office on its decision to drop the “bad actor” designation. After much stonewalling and a refusal to provide the public documents, MEIC took them to court. The district court agreed with MEIC, finding that Gov. Gianforte’s office had improperly denied our records request and ordered them to provide the documents. However, the judge denied MEIC’s request for attorneys fees in the matter, which MEIC then appealed. In its order establishing that there is a “presumption” for awarding attorneys fees when the government improperly denies a records request, the Montana Supreme Court succinctly stated that:
When a party succeeds in litigation based on a right to know request, it has performed a public service in ensuring that Montana’s government is appropriately transparent and accountable to the people. Such cases serve a critical role in developing Montanans’ fundamental right to know…
For citizens to be able to enforce the provisions against the government, litigation must be accessible; for litigation to be accessible, there should be a basic presumption towards awarding attorney’s fees when the party seeking to enforce the right to know has prevailed on the merits…
This presumption is not a novelty imagined at the whims of this Court; it is part of the fabric of the right to know which has been errantly lost to an unboundedly deferential standard that allowed for results fundamentally at odds with the Constitution. A presumption towards fees echoes the textual presumption towards disclosure and ensures that future decisions serve to strengthen the right, not to disincentivize public engagement.
Rights can’t enforce themselves. When the government improperly denies a records request, there must be consequences. Otherwise, the government is untethered from its accountability to the people of Montana and is not incentivized to provide documents that are often incredibly important for people’s lives and liberties as well as Montana’s environment. This award-wnning victory was hard-fought and was the product of the expert litigation skills of Rob Farris- Olsen and Kim Wilson of the Helena law firm Morrison, Sherwood, Wilson, & Deola as well as Derf Johnson with MEIC (see article on pg. 7).
This article was published in the September 2025 issue of Down To Earth.
