Montana's perp walk 

“In perpetuity” means forever

The Montana Constitution leaves little doubt about what’s expected in taking care of the environment. Section 1 of Article IX states: “The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” Section 2 requires: “All lands disturbed by the taking of natural resources shall be reclaimed.” Unfortunately, the degradation of Montana’s environmental laws under Republican governors and legislatures has ignored both of those Constitutional requirements.

This week the Montana Legislature overwhelmingly approved a plan to create a trust account for the sole purpose of providing funds to treat polluted water from the abandoned Zortmann-Landusky open pit mine in the Little Rocky Mountains. Besides utterly destroying the mountains they hold sacred, the runoff from the cyanide-leach mine site is so toxic that the Indians of the Fort Belknap Reservation can no longer use it. Rep. Jonathan Windy Boy’s bill would establish the trust to treat this poisoned water “in perpetuity.”

In a fine example of what can be accomplished when partisan politics bow to pressing needs, Republican Sen. Sam Kitzenburg of Glasgow told his fellow senators: “The water is worse than terrible.” Fleshing out the grim details, Harlem Democrat Sen. Ken Hansen related the testimony of residents living near the mine. “Some have to haul water from 30 or 40 miles away because they don’t trust the water they drink anymore.” Hansen added that the water is so bad the residents no longer use it to cook, bathe or irrigate. “They live off the land, a land they can no longer trust because of the high mineral content and contaminants in the water and soil.”

It should be obvious that both the state and Pegasus Gold blew off their constitutional duties where “maintaining a clean and healthful environment” and reclamation of “all lands disturbed by the taking of natural resources” are concerned. Pegasus operated the mine from 1979 to 1998, at which time the firm went bankrupt. The “reclamation” bond posted by the company will run out of cash in 2018, hence the need for Windy Boy’s bill to establish the trust. The treatment of the toxic water, unlike the mine’s bond money, must go on forever.

Luckily, the Montana Constitution established an inviolate $100 million Resource Indemnity Trust Fund (RIT). Even back in 1972, when the Constitution was adopted, it was clear that our state would be plagued by unreclaimed mines left behind by scurrilous operators. As one legislator said: “They got the gold and we got the shaft.” The RIT is funded with a one-half of 1 percent tax on mineral extraction, and it is that tax which will be used for the Zortmann-Landusky water treatment plan.

But all that is in the past. The real import of this issue is how it relates to mining disasters in the making—and that’s where the constitutional issues are likely to come into play.

Take the Golden Sunlight Mine near Whitehall, for instance. Just as with a host of recent open pit mines, industry-friendly state regulators under Republican administrations have refused to levy bonds or reclamation requirements that meet the constitutional requirements. A couple of years ago the Montana Environmental Information Center won a lawsuit to require at least partial backfilling of the enormous Golden Sunlight open pit. The Environmental Impact Statement analyzing the mine determined that backfilling the pit was the most environmentally sound course of action. But mine operators descried the requirement, saying it would make further mining uneconomical if they had to spend the millions required to backfill.

Lo and behold, their words fell on the perky ears of Gov. Martz’s mining regulators and, with a deft display of scientific sleight-of-hand, those bureaucrats decided that backfilling the pit was the wrong thing to do. Their newly discovered “science” reasoned that if the pit was backfilled, the resulting toxic seepage would reach the nearby Jefferson River sooner or later. Now, the bureaucrats say the proper way to deal with Golden Sunlight’s open pit is to leave it the way it is and install a water treatment plant to—you guessed it—treat the poisoned water “in perpetuity.”

It should come as no surprise to anyone that this might happen. After all, the state’s top mining regulators have spent virtually their entire careers under Republican administrations, implementing the wishes of the mining industry instead of living up to their constitutional duties to “maintain and improve a clean and healthful environment in Montana for present and future generations.”

But here’s the catch. Gov. Brian Schweitzer has promised “a new day” for our state. “Montana’s real treasure,” Schweitzer told a gathering last year, is “our mountains—not what’s buried beneath them.” If that’s the case, it’s hard to justify the ongoing destruction caused by open-pit mines such as Golden Sunlight that will, as with the ill-fated Zortmann-Landusky disaster, tear down our mountains, crush them, soak them in cyanide, and leave the remnants to seep poisons forever.

The problem and the challenge for Gov. Schweitzer is to lean hard enough on the gubernatorial rudder to turn the regulatory agencies toward the sunrise of his “new day.” Gone are Govs. Stephens, Racicot and Martz, and gone too should be their outdated attitudes that saw the apex of their duties as lending all possible assistance to the ongoing destruction of the state’s water, air, and lands.

In discussing the measure to address the treatment of Zortmann-Landusky’s toxic water, Schweitzer’s Chief Policy Advisor Hal Harper was right when he said: “Some way or another, someone’s got to pay for that.” After all, the Montana Constitution mandates that we leave a “clean and healthful environment” for “future generations.”

If we run our state according to the Constitution—instead of whoring it out to resource extraction interests—it’s clearly time for Schweitzer to tell his regulators in no uncertain terms that creating poisoned water that must be treated “in perpetuity” is no longer good enough for Montanans.

When not lobbying the Montana Legislature, George Ochenski is rattling the cage of the political establishment as a political analyst for the Independent. Contact Ochenski at

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