Judge rocks Montana's open-pit mines
On Sept. 1, Judge Thomas Honzel ruled that the state illegally approved, without a full environmental impact statement, expansion at the Golden Sunlight, a sprawling mine in the Bull Mountains near Whitehall. Relying only on a modified environmental assessment, the Department of State Lands approved expansion of the mine's pit from 140 to 209 acres. The agency also allowed the mine to excavate an additional 210 million tons of waste rock and 30 million tons of ore.
Montana law "does not permit this kind of approve-now, ask-questions-later approach to environmental decision-making," the judge said in a 47-page ruling. "Even after it is shut down, the mine will continue to generate an estimated 95 gallons of toxic water every minute for the rest of time," he noted.
Perhaps more significantly, the judge also declared that a 1985 state law exempting open-pit mines from reclamation violates Montana's constitution. The law says reclamation of open pits "may not be feasible." Kim Wilson, an attorney representing environmentalists, describes the phrase as "a big glaring loophole" for most of the more recent open-pit mines in Montana.
Noting that the 1972 Montana Constitution says that, "All lands disturbed by the taking of natural resources shall be reclaimed," Honzel concluded that open-pit mines are not exempt. An editorial in The Montana Standard agreed, noting, "The language couldn't be clearer ..."
Mining groups say the decision, which also applies to future mines, could devastate the industry. Environmental groups say it will finally make companies fully accountable for the environmental destruction caused by their operations.
"What this is really about is saving the Blackfoot (River) and Rock Creek and the Sweetgrass Hills and any other place where open-pit, cyanide heap-leach mines are planned," says Jim Jensen of the Montana Environmental Information Center (MEIC). "The decision means you fill up a hole when you get through mining. There will be no more Berkeley Pits."
The Berkeley Pit in Butte, Mont., is a gigantic hole holding 17 billion gallons of toxic wastewater left over from the operation of an open-pit copper mine (HCN, 11/29/93).
The case began in 1992, when the National Wildlife Federation, the Mineral Policy Center, the Sierra Club, the Gallatin Wildlife Association and MEIC filed suit against Golden Sunlight and the state.
Sandi Olsen, chief of the state's Hard Rock Bureau, says that when preparing the assessment of the mine's impacts, "We did the best we could with the time we had and the resources we had. It wasn't good enough. What can I say? I'm not about to second-guess the judge."
Olsen says the state will take at least four months to prepare a full environmental impact statement for Golden Sunlight's expansion, some of which has already occurred at a cost of some $40 million. It will be up to state legislators, she says, to define new standards for pit reclamation.
The battle over what constitutes pit reclamation promises to be intense.
Fess Foster, director of geology and environmental affairs for Golden Sunlight Mine, says Judge Honzel's ruling contains some ambiguity. "Bottom line, the decision does call for pit reclamation, but it does not define pit reclamation."
Honzel's order "could have severe implications if taken to the extreme," says Gary Langley of the Montana Mining Association. The extreme, he says, would require complete back-filling of pits. Such reclamation typically is neither economically nor technologically feasible, he argues.
Langley says the groups who sued Golden Sunlight and the state have a larger agenda. "All they really want to do is stop mining. I guess they got what they wanted."
Environmentalists disagree. "The decision is not anti-mining. It's pro-reclamation," says Tom Jensen. "If we were out to stop mining, we would have sought an injunction to shut down that mine."
"We do need the benefits that mining can bring," adds Philip Hocker, president of the Mineral Policy Center. "But we don't need to trash the Northern Rockies to have those benefits."
To date, neither Golden Sunlight nor the state has announced whether there will be an appeal of Honzel's decision to the Montana Supreme Court.
Meanwhile, Honzel's decision has not halted operations at the Golden Sunlight mine. Mining there has ceased for a different reason: The earth has been shifting beneath the mine's cyanide mill.
* Duncan Adams
Duncan Adams is a free-lance writer based in Anaconda, Montana.