Emigrant Peak Mining Sites

Emigrant Peak is shown by plane on July 13, 2018.

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The fight over gold mining in the mountains east of the Paradise Valley hit the Montana Supreme Court on Wednesday, with attorneys tangling over whether a 2011 amendment to state environmental laws is unconstitutional.

Justices heard arguments over whether a Park County judge was right to invalidate Montana’s approval of an exploratory drilling permit for Lucky Minerals, Inc., after finding the permit was unlawfully approved. An amendment to the Montana Environmental Policy Act bars district judges from temporarily blocking projects approved by state agencies even if they find the approval was illegal.

Jenny Harbine, the Earthjustice attorney representing the Greater Yellowstone Coalition and the Park County Environmental Council, said the amendment makes any public participation following such a ruling “a hollow paperwork exercise.”

Rob Cameron, deputy attorney general representing the state, said the plaintiffs could have avoided a constitutional challenge if they had pursued other available remedies.

He said they could have filed for an injunction under different statutes, including the Metal Mine Reclamation Act and Water Quality Act. He also said 3,000 comments had already been submitted on the project, and more would be gathered in the future.

“It’s only the beginning of the public’s right to participate,” he said.

The two environmental groups sued over the Montana Department of Environmental Quality’s 2017 approval of Lucky’s drilling plans, arguing the agency overlooked environmental impacts.

In 2018, a district court judge ruled in favor of the two conservation groups. The judge ruled that DEQ illegally approved Lucky Minerals’ exploratory drilling permit on private land near Emigrant Peak.

Because of the 2011 amendment, the judge couldn’t immediately block the project. The plaintiffs filed a motion asking the judge to rule the amendment unconstitutional, which the judge did in April 2019.

Attorneys representing Lucky Minerals and DEQ appealed the district court judge’s decision, sending the case to the state Supreme Court.

The Montana Supreme Court Wednesday heard oral arguments from both sides. In addition to the constitutional implications of the case, arguments centered around whether the exploratory project could harm wildlife.

Harbine said after the hearing that improvements to roads up to the drilling site could harm grizzly bear and wolverine populations. She argued increased motorized traffic on the roads due to the improvements could imperil wildlife.

KD Feeback, the attorney representing Lucky Minerals, said after the hearing there was no evidence wolverines were in the area, and pickups could already access the site. He argued there is ample habitat surrounding the site.

“It’s such a small thing,” he said. “If grizzly bears don’t like the site, they will just walk around it.”

Harbine argued the DEQ didn’t sufficiently guard against contamination to surface waters, which she said could ultimately end up in the Yellowstone River.

Feeback said the contamination wouldn’t be a problem, as the contractors would have to plug the drill holes with cement.

Harbine said Lucky Minerals continues to disregard the importance of the Emigrant Gulch area to Montanans, and failed to acknowledge the serious potential impacts of the project.

“It’s galling considering the history of mining in this state,” she said.

Feeback said the plaintiffs’ suit undermines constitutional private property rights, which he said need to be balanced with the public’s right to a clean and healthful environment.

“There’s no reason in the world that they’re ability to trespass should trump Lucky’s ability to use their own property,” he said.

Harbine expected the Supreme Court would issue a ruling anywhere between two to nine months, though she couldn’t say for sure.

“If Lucky’s exploration project is allowed to proceed before DEQ fully considers the project’s impacts and alternatives to lessen them, the very purpose of MEPA and the constitutional right to a clean and healthful environment are undermined,” she said during the hearing.

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Helena Dore can be reached at hdore@dailychronicle.com or at 582-2628.

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