Neighbors, Community, and Public Iced Out of Public Decisions by State, Violating Constitutional Rights
Last week, Upper Missouri Waterkeeper and its members filed a complaint against the Montana Department of Environmental Quality (DEQ) for its approval of a Small Miner Exclusion Statement (SMES) to Mithril Mining Corporation regarding mining actions near the Big Hole River absent any public notice, public participation opportunities, or any review under the Montana Environmental Policy Act (MEPA).
“But for going to get a burger for lunch I would never have heard about the plan to reopen a major mine a few miles up my dirt road on the storied Big Hole River. A server directed me to a single sheet of paper on an otherwise cluttered bulletin board that was the only notice to our community about a meeting and a potential major risk to the river,” said Dane Strother whose land the mining trucks would traverse. “Hopefully this isn’t a backroom deal at the expense of our private property values, water and community. It’s unacceptable and we demand to know the full story of who all are behind this potential environmental disaster and did state agencies rubber stamp any plan without due process and study. Bottom line, is the law being followed,” he added. “Wise River neighbors most impacted by a major mine are fortunate to be members of Upper Missouri Waterkeeper that recognized the environmental and economic danger and are demanding answers and explanations.”
Waterkeeper received word of the proposed mining activities from a group of members that are adjacent landowners to the Calvert Tungsten Mine, all of whom received zero public notice or public participation activities, despite residing downgradient to the mine.
Mithril Mining Corporation recently published a press release detailing recent mineral surveys that verified data on historical surface material. The release states: “The resulting data will be incorporated into Mithril’s ongoing evaluation of historical mine materials and broader development planning at Calvert.”
Along with the complaint, Waterkeeper filed a Motion for an Emergency Temporary Restraining Order, Preliminary Injunction and Show Cause Order after learning that mining activities were scheduled to begin on Monday, June 22 at 8:00am. The morning after filing, Judge Luke Berger in Beaverhead County District Court granted a Temporary Restraining Order, suspending all authorized mining activities.
“The Temporary Restraining Order is a victory for the public and for the Big Hole,” said Guy Alsentzer, Executive Director of Upper Missouri Waterkeeper. “We’re not only seeing this pattern and practice of keeping the public out of the loop on decisions that impact our public lands, waters, and resources at the federal level, but under the Gianforte administration, too. If it weren’t for the diligence of citizens and groups staying alert and stepping up, huge decisions with the ability to significantly impact our environment would be rubberstamped without any public participation.”
The U.S. Department of Agriculture and Forest Service recently gutted their National Environmental Policy Act (NEPA) procedures, eliminating draft environmental impact statements and limiting public involvement. DEQ’s issuance of a SMES for the Mithril Tungsten Mine Phase I follows in their footsteps, despite Montana law requiring robust public notice, participation, and environmental review.
The lawsuit requests claims for relief for the following:
- Violation of Right to Know and Public Participation – MCA and MEPA both require the public to be provided with a reasonable opportunity to comment on agency decisions that are of significant interest to the public. DEQ did not provide for any public notice, or any public comment opportunities, regarding consideration of a SMES for the Mithril Mining Corporation’s Calvert Tungsten Mine proposal. Waterkeeper staff requested documentation of the mining operation in person at DEQ’s headquarters in Helena, but the agency refused to provide documentation, despite knowing that the operations approved under the SMES would begin just ten days later.
- Violation of the Montana Environmental Policy Act – MEPA requires state agencies to carefully scrutinize the potential environmental consequences of their actions, including determining the significance of impacts. DEQ failed to perform any MEPA analysis for Mithril’s proposed mining activity or conducted a MEPA review behind closed doors and absent any public notice, violating MEPA and fundamental constitutional rights.
- Violation of Montana’s Constitution – Without a regulatory scheme affording DEQ the ability to conduct a meaningful environmental review, the Mining Act’s allowance of SMES is unconstitutional.
Waterkeeper requests that the Court determine and declare that:
- DEQ’s issuance of a SMES for the Calvert Tungsten Project is invalid and void;
- DEQ’s actions were illegal and violated constitutional rights to public participation and notice;
- DEQ’s actions were an abuse of discretion, illegal, and arbitrary and capricious in determining the Calvert Tungsten Mine SEMES exempt from MEPA and failing to perform MEPA;
- DEQ’s failure to perform any MEPA violates environmental rights guaranteed by the Constitution.
The Big Hole River is a cornerstone of the outdoor economy, outdoor recreation, and way of life in Southwest Montana. It’s also suffering widespread water quality challenges, including unhealthy water temperatures, excessive sedimentation, metals contamination from legacy mining actions, and excessive nutrient pollution, and its world-renowned blue ribbon trout populations are at an unprecedented low. Proposed mining activities have the potential to further degrade the already-stressed and degraded nearby water resources.
A hearing is scheduled for Tuesday, June 30 at 9:00 am to show cause, if any, for why Waterkeeper’s request for injunctive relief should not be made permanent and granted.
Photo Credit: Utah State University