By Derf Johnson
Over the past few years, Gov. Greg Gianforte has wrongfully withheld public documents from an official document request by attempting to utilize an incredibly novel legal theory that a judge characterized as “completely unmoored from the text, history, and purpose underlying both Article II, Section 9 and the implementing public records statutes.” In his order, the judge cited Article II, Section 9 of the Constitution because it contains the fundamental right for Montanans to access public writings of our government. It’s one of the strongest constitutional “right to know” provisions in the country, with the aim of assuring that the government is transparent and accountable to the people it serves.
MEIC and Earthworks requested records around the communications that Gov. Gianforte’s office had with Hecla Mining and its president, Phillips S. Baker, Jr. For context, under the Bullock Administration, Hecla and Baker were designated as “bad actors” for Baker’s former company’s failure to reclaim and remediate major environmental damage at the Zortman-Landusky mining complex, which has cost the state and federal government more than $80 million (as of 2017) and has severely impacted cultural and environmental resources of the Fort Belknap Indian Community. As required by the Bad Actor law, the Montana Department of Environmental Quality (DEQ) suspended the permitting activity for Hecla’s proposed mines in far northwest Montana under Gov. Bullock’s administration (the Montanore and Rock Creek mines). If approved, these mines would tunnel under the Cabinet Mountains and a federally designated wilderness area; severely impact water resources; risk further impacts to an isolated population of grizzly bears; and dewater critical streams for bull trout. Under the Bullock Administration’s decision, Hecla could not proceed with attempting to permit the Cabinet Mountains mines unless and until the company either reclaimed the damage wrought at Zortman-Landusky or compensated the state for the reclamation costs.
Gov. Gianforte’s administration did a complete u-turn. It dropped the enforcement action against Baker and Hecla, and reactivated the permits at Montanore and Rock Creek. As you can imagine, Gov. Gianforte waving the white flag and dropping a years-long enforcement action to protect public resources and tax dollars against an international mining company raised alarm bells at MEIC. Gov. Gianforte’s official explanation did not make sense, so we decided to dig a little deeper. We filed an official information request with his office to better understand both the deliberations that went into the decision to drop the bad actor matter as well as the administration’s relationship with mining interests. We’d also like to know: did the Gianforte Administration drop the case after being lobbied by Hecla / Baker?
After four months of virtual radio-silence and no public documents, we brought suit in Montana District Court in Helena with the help of attorneys Kim Wilson and Robert Farris-Olsen. Long story short, the Governor refused to release any of the documents by arguing a novel legal defense: that the Governor did not have to respond due to litigation in a separate case against DEQ (brought by the Fort Belknap Indian Community, the Confederated Salish and Kootenai Tribes, MEIC, and other partners) to enforce the bad actor law. The judge didn’t bite. Rejecting the Governor’s argument, the judge has ordered that the Gianforte Administration release the records to MEIC and Earthworks. However, as of this writing, the Governor’s office has not released any documents.
Notably, such a decision is subject to an appeal, and it is likely that the Governor’s office, rather than release the records, will appeal the decision to the Montana Supreme Court and in the interim argue that they should not be required to release any of the records until the appeals process has concluded. Rest assured, MEIC will be dogged in pursuing the documents from the Governor’s stalling tactics and any appeals process, as well as defending the fundamental right of all Montanans to access public information and to hold our government accountable.
This article was published in the September 2023 issue of Down To Earth.