Court dismisses ‘premature’ Hecla motion for injunction against DEQ

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Montana First District Court Judge Mike Menahan issued an order Dec. 7 to dismiss a motion for preliminary injunction by Montanore Minerals Corp. and other Hecla Mining companies against the Montana Department of Environmental Quality, basing the decision on procedure and not the merits of the case.

Hecla Vice President of External Affairs, Luke Russell, said that they had originally sought the injunction to prevent DEQ from suspending existing permits.

“Now we’ll get to the merits,” Russell said.

In his analysis, Menahan states that Hecla has not shown they will suffer irreparable damages before their rights can be fully litigated. He also states that, under state law, a district court cannot “prevent an agency from executing a statute.”

Under principles of the law, Menahan noted that state law prohibits a district court from issuing an injunction when “a district courts lack subject matter jurisdiction to hear declaratory actions regarding agency decisions where either the decision was not final, or the aggrieved part has not exhausted her administrative remedies.”

In his analysis, he states that the DEQ has not made a final decision, and Hecla has not exhausted administrative remedies.

His analysis also states that the DEQ is not currently “looking to suspend any permit or license,” and that Hecla has not shown that the DEQ intends to do so.

“The record is devoid of any indication DEQ is or, in the near future, will seek to revoke or nullify Plaintiff’s permits,” he states.

Ultimately, the analysis concludes that the motion for an injunction is “premature.”

On Wednesday, Russell said that the DEQ has re-issued permits for the Rock Creek and Montanore mines since the motion was made for an injunction.

Russell maintained Hecla’s position regarding the DEQ’s decision that Hecla is in violation of Montana’s Metal Mine Reclamation Act.

“That action, which we believe is unwarranted, really is further delaying bringing many high-paid careers to Lincoln and Sanders counties, not just good paying jobs, but careers,” he said.

History

A Complaint for Declaratory Judgment and Injunctive Relief was originally filed March 23, 2018, in Montana 19th Judicial District Court in Libby. It was then moved to the First District Court pursuant to an order by 19th District Court Judge Mike Cuffe issued April 18, 2018.

The complaint against the DEQ and it’s director followed the DEQ’s decision that Hecla and its CEO are in violation of the Metal Mine Reclamation Act. At stake were permits for two mines the company seeks to develop near Libby.

The DEQ notified Hecla of its determination on March 20, stating that the company and its CEO, Phillips S. Baker, were in violation of the act’s “bad actor” provision.

The provision “prohibits a person from conducting mining or exploration activities in Montana if that person was a principal or controlling member of a business entity for which DEQ received bond proceeds,” DEQ Director Tom Livers said in a statement provided March 22, 2018 to The Western News.

Baker previously was vice president and chief financial officer of Pegasus Gold Incorporated, whose Zortman-Landusky, Basin Creek and Beal Mountain mines polluted the environment. Pegasus eventually filed for bankruptcy, leaving the state responsible for cleanup.

The DEQ decision followed a request a handful of conservation groups made in October 2017 for the DEQ to suspend state permits for the two mines. The groups include the Clark Fork Coalition, Earthworks, Montana Environmental Information Center, Rock Creek Alliance and Save Our Cabinets, which are represented by the law firm Earthjustice.

According to court documents, the original letter from the DEQ stated that the agency had the authority to suspend exploration licenses and operating permits.

The purpose of the injunction was to attempt to prevent the DEQ from suspending Hecla’s permits while the they were contesting whether the company is in violation of the bad actor provision, Russell said.

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