Panel orders release of Clark Fork papers 

A federal panel has overturned a court ruling that said the Montana Department of Environmental Quality (DEQ) can keep a variety of Clark Fork River clean-up documents and meeting notes shielded from public review.

The May 24 ruling by a three-member panel of the U.S. 9th Circuit Court of Appeals was requested by an Atlantic Richfield Co. subsidiary that is being held responsible for mining-related pollution in the Clark Fork between Butte and Milltown Reservoir.

The company inherited the problem when it purchased Anaconda Mineral Co. holdings in 1977. The polluted area is the largest federal Superfund site in the nation.

ARCO Environmental Remediation filed suit against DEQ last year in state district court. The company argued that DEQ improperly withheld information about its environmental risk assessments for the river corridor. The assessments were conducted to document the extent of damage to the watershed from decades of mining in the river’s upper basin.

State officials said they were mandated to close meetings and keep related documents under wraps because of an agreement with the federal Environmental Protection Agency under the Comprehensive Environmental Response, Compensation and Liability Act, which governs Superfund sites. According to court documents, state and federal officials contend the information is “enforcement-related” and “pre-decisional” in nature, which would potentially exempt it from federal Freedom of Information Act provisions. But the ARCO subsidiary, which has been named in past state and federal clean-up suits, argued that the agreement violates the right-to-know clause of the Montana Constitution.

DEQ attorneys successfully transferred the case to U.S. District Court in Helena on the grounds that it was a federal action. The state also added EPA as a co-defendant.

Last fall, Judge Charles Lovell ruled that DEQ and other state agencies can enter into cooperative agreements with the federal government, even if confidentiality is required. In such cases, he said, state right-to-know laws are pre-empted.

That’s bunk, the federal panel said on appeal. It also stripped EPA out of the lawsuit.

“Because we find that the district court has no jurisdiction over this case, we reverse,” says the ruling, which contends the disagreement is purely a state-level matter. “Montana law creates the causes of action for access to public documents and meetings under which ARCO has chosen to seek relief. ... In short, ARCO’s right to relief does not depend on the resolution of any federal law question.”

“We’re considering our options,” DEQ attorney Tim Baker says of the case, which will now be heard in state district court.

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