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Smith River mine protest

A protester against the proposed copper mine near the Smith River grabs a sign on Nov. 6, 2017, after fellow demonstrators drove a procession of drift boats around the State Capitol. A mining group has asked the state Supreme Court to declare an initiative meant to limit pollution from new mines invalid.

Three weeks after an initiative meant to limit pollution from new mines got the green light for supporters to try and get it on the ballot, a mining group has asked the state Supreme Court to declare it invalid.

Initiative 186 is brought by several conservation groups under the umbrella of Yes for Responsible Mining. It would require the state to deny any new mining permits for operations that require perpetual water treatment.

Those who support the initiative say it would drastically reduce pollution from mines, while those who oppose it say the language of the initiative is unclear and it could limit the creation of jobs.

The Montana Mining Association on Friday asked the state Supreme Court to declare the ballot initiative legally insufficient and stop signature-gathering efforts to get the initiative on the ballot this fall.

The lawsuit is filed against the state attorney general, who determines whether ballot initiatives are legally sufficient, and the secretary of state, who certifies that initiatives can appear on the ballot.

The ballot initiative does not define terms such as "perpetual treatment," "perpetual leaching" and "contaminants." It leaves that up to either the Montana Legislature or the Department of Environmental Quality through the rulemaking process.

The language of the initiative says it becomes effective "upon approval by the electorate." But the mining group argues a state law says any initiative that requires rulemaking by a state agency cannot become effective before the October following its approval.

Tammy Johnson, executive director of the Montana Mining Association, said that while her organization has spent more than $110,000 supporting a group working to defeat the initiative, the lawsuit is just about the effective date.

“That is our only request; it really is one of simple statutory construction,” Johnson said Wednesday. "The state of Montana has work to do and we need to give them time to do this before this is effective if passed by the voters. … This is a pretty straightforward request. It is not that we are trying to do anything other than change that effective date so that the rulemaking can occur so that the agency is able to implement this if it passes.”

Johnson said the mining association has done some fundraising and retained legal counsel to help it understand what the initiative means, as well as commissioned an economic study.

“We have a lot of ambiguous, undefined terms that we don’t even understand exactly how this would roll out,” Johnson said. “In general we think that this could portend a ban on future mining.”

David Brooks, the executive director of Montana Trout Unlimited, was critical of the lawsuit Wednesday.

“They’re trying to get this issue in front of anybody except the Montana public,” Brooks said. Trout Unlimited is one of the groups that supports the initiative. 

Montana Trout Unlimited also objected to one of the companies that has paid to help support the legal opposition to the initiative. Brooks' initial reaction was that he doesn't see a problem with legal sufficiency of the initiative, but said he’s still in the process of reviewing the court filing.

Brooks said he expects Yes for Responsible Mining to be close to reaching the roughly 25,600 signatures it needs to get the initiative on the ballot sometime this week. The deadline to submit signatures for proposed initiatives to county election offices is June 22.

Filings with the state Commissioner of Political Practices show that Sandfire America provided nearly $18,000 in legal review services to “review [the] initiative process, initiative language and determine legal strategy” to a committee working to defeat the initiative. The committee is called Stop I-186 to Protect Miners and Jobs.

Sandfire America is a subsidiary of Sandfire Resources, which is based in West Perth, Australia. It took over Tintina Resources, which is trying to permit a mine near the headwaters of the Smith River.

Several companies, including Hecla Mining Co., Montana Resources, Golden Sunlight Mines, Sibanye Stillwater and Sandfire America, along with Montana Mining Association, have also spent money to support Stop I-186 to Protect Miners and Jobs.

Johnson, with the mining association, pointed out that many other companies are participating in the legal effort.

“It is absolutely not a Sandfire-led effort,” Johnson said.

Brooks said it was a “surprise” to see Sandfire spending so much money to try and stop the initiative, given the company’s effort to tell the public they would run the mine near the Smith while preserving the environment.

“Sandfire has been very vocal over the last couple of years over the fact they can do [mining] right and they can mine responsibly and not cause water pollution,” Brooks said. “To see them funding an effort to kill this is saying something different to me than what they’ve been telling the public.”

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Brooks defended the initiative during a Wednesday hearing of the Environmental Quality Council in Helena as protecting industries such as recreation and agriculture that depend on clean water. (See related story.)

“I believe it is irresponsible to taxpayers and damaging to the resource to continue permitting these kinds of mines,” he said.

Rep. Jim Keane, D-Butte, offered scathing testimony during public comment in opposition to I-186, saying in part that it invites litigation.

“This is not about protecting the water of the state of Montana,” he said. “This is about getting every mining company exploring in the state of Montana to leave Montana … and go to another state.”

Republican Libby lawmakers Sen. Chas Vincent and Rep. Steve Gunderson were among the most vocal opponents, pointing out that much of the publicly funded mining cleanup comes from taxes on industry rather than the state’s general fund and that similar legislation to I-186 failed to pass the Legislature.

I-186 "is trying to bypass our common sense and reason that we’re here to put something very technical in front of the public that they don’t understand,” Gunderson said.

Vincent was critical of another portion of the initiative that would up the environmental analysis standard from a “preponderance of evidence” to the more stringent “clear and convincing.” Vincent also believed the initiative unfairly targets mining as an industry while other entities such as waste water and agriculture also pollute.

Sen. JP Pomnichowski, D-Bozeman, defended the principle behind I-186.

“For a practice that has a known effect on soils and strata and water, the onus should be on the applicant,” she said. “I appreciate mining practices, but what is anything worth if you don’t have clean water.”

Eric Sell, a spokesman for Attorney General Tim Fox, said Wednesday that the attorney general's office doesn't believe concerns raised by the mining association make the initiative legally deficient.

Sell said the attorney general will file a response with the state by June 4.

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State Bureau reporter for The Independent Record.

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