Yellowstone Mining

Emigrant Peak is seen rising above the Paradise Valley and the Yellowstone River near Emigrant.

The Montana Attorney General’s Office is arguing that an exploratory drilling project in the mountains north of Yellowstone National Park should be allowed to go forward despite a district judge’s finding that the underlying environmental analysis was unlawful.

In a brief filed with Park County District Court, Deputy Attorney General Rob Cameron argued that a state law barring district courts from invalidating a state agency’s approval after finding an environmental review to be inadequate doesn’t violate Montana’s constitution, which guarantees a person’s right to a “clean and healthful environment.”

He also wrote that Montana’s environmental laws were not intended to be “the roadblock tool of environmental groups” for shutting down resource development projects they don’t like.

The brief comes in response to a legal challenge from the Park County Environmental Council and the Greater Yellowstone Coalition concerning Lucky Minerals Inc.’s plans to drill for gold on private land in the mountains east of the Paradise Valley.

But Gilbert couldn’t block the project because of a 2011 amendment to the Montana Environmental Policy Act prohibiting judges from invalidating state approval of a project after finding the state’s approval was unlawful.

The two groups then filed a motion arguing that provision violated the state constitution in this case. The Attorney General’s Office intervened in the case to defend the law.

The plaintiffs are scheduled to file a brief in response to the AG’s brief by Nov. 7. A hearing in the case is set for Dec. 6.

In the brief filed last week, Cameron argued that the case pits two fundamental rights in the state constitution against each other — the plaintiff’s right to a clean environment and the private property rights of Lucky Minerals. He wrote that neither outweighs the other.

He also wrote that the state’s metal mining reclamation laws do plenty to protect a person’s right to a clean environment. He listed the various safeguards Lucky Minerals would be required to implement to ensure its work wouldn’t harm wildlife or water quality.

Jenny Harbine, an Earthjustice attorney representing the plaintiffs, said the brief ignores the fundamental issue of the case, which is about whether to let Lucky move ahead with the project.

“What’s missing from the AG’s analysis is the long term if not permanent consequences of allowing Lucky Minerals to commence industrial operations based on an unlawfully issued authorization,” Harbine said.

Lucky Minerals has not yet posted a bond with the state, which would allow the company to start work. The company’s CEO, John Mears, told the Chronicle earlier this year that they’d likely do so over the winter.

Michael Wright can be reached at mwright@dailychronicle.com or at 406-582-2638. Follow him on Twitter @mj_wright1.

Michael Wright covers the environment and wildlife issues for the Chronicle.

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