The Montana Supreme Court has denied an appeal brought by Canadian mining company Lucky Minerals, effectively voiding its permit to conduct exploratory drilling for gold in a remote area north of Yellowstone National Park.
Tuesday’s ruling marked the culmination of a years-long campaign to prevent mining in the Emigrant Gulch area. Popularized by a “Yellowstone is more valuable than gold” rallying cry, the campaign garnered endorsements from more than 400 local businesses and drew support from the U.S. Department of Interior and U.S. Congress.
In siding with plaintiffs Park County Environmental Council and Greater Yellowstone Coalition, the state Supreme Court unanimously reaffirmed a lower court’s 2018 ruling that the Montana Department of Environmental Quality did not conduct adequate analysis on the potential environmental impacts of exploratory drilling operations in Emigrant Gulch.
The court found that DEQ erred by not taking a sufficiently “hard look” at how road improvements would affect wildlife like grizzly bears and wolverines, and that its “plan to make a plan” to address potential groundwater and stream impacts was insufficient.
Citing the proposed mine’s proximity to Yellowstone National Park and the area’s importance to both wildlife and a tourism-dependent human economy, the Supreme Court’s opinion stated that “the need for fully informed and considered decision making could hardly be more pressing.”
According to information on Lucky Minerals’ website, the Emigrant Creek Project encompasses several targets across a nine-square-mile area that the company owns or controls on the western edge of the Absaroka Mountains. The company has staked 117 mining claims in the area, which it says has potential to host a multimillion-ounce gold deposit. The company did not return requests for comment on the ruling.
Concerns about the project’s potential to contaminate groundwater, pollute tributaries of the Yellowstone River, displace wildlife, increase light and noise pollution, and compromise the region’s outdoor recreation economy inspired the 2016 creation of the Yellowstone Gateway Business Coalition, a collection of businesses and landowners stretching from Livingston to Gardiner that came out in opposition to the mine.
“We came together across ideological and party lines to work together for this issue because we share values, and I think that is a really powerful model for how to get stuff done in defense of places,” said Park County Environmental Council Executive Director Michelle Uberuaga. “We win at the local level when we put people together.”
The ruling’s reach extends far beyond the Lucky Minerals project. Plaintiffs say the court’s decision has closed a “loophole” that allowed mining companies to move forward with agency-approved projects even while active judicial challenges raise concerns about environmental impacts.
At issue is the Montana Environmental Policy Act, a law passed in 1971 with nearly unanimous support, which requires environmental review prior to government actions that may significantly affect the human environment, and an amendment to that act that was passed in 2011. The amendment mandates that “a permit, license, lease or authorization issued by an agency is valid and may not be enjoined, voided, nullified, revoked, modified, or suspended pending the completion of an environmental review that may be remanded by a court.”
The conservation groups argued that if Lucky Minerals had been able to go forward with drilling operations per its exploration license while court-ordered studies of environmental impacts were being conducted, any potential remedies might come too late to rectify damages already done. They argued that such an outcome would deny Montanans their constitutional guarantee of a clean and healthful environment and their right to public participation.
The court agreed: “The 2011 Amendments seek to allow Lucky to commence this work before DEQ completes supplemental review, a review that can be expected to achieve very little beyond informing Montanans — perhaps tragically — of the consequences of the actions that have already been taken,” the court wrote. “A remedy implemented only after a violation is a hollow vindication of constitutional rights if a potentially irreversible harm has already occurred.”
Jenny Harbine, an attorney with the nonprofit Earthjustice who argued the case on behalf of the plaintiffs, said in a press release that the court’s ruling will apply to pending challenges to mining projects across the state. There are currently 70 active hard rock mining permits in Montana, and 96 exploration licenses of the kind Lucky Minerals sought.
“The Court was right to eliminate this barrier to those seeking justice by preventing such destructive activities,” she said in the release.
Montana Attorney General Tim Fox joined Lucky Minerals and DEQ in the appeal, arguing that environmental rights should be balanced against private property rights also enshrined in the Montana Constitution. But the court found that “DEQ’s erroneously premature approval of Lucky’s application did not grant Lucky an irrevocable and constitutionally-protected private property right.”
The Supreme Court took up six issues in its decision, and the role of private property rights was just one of them. DEQ and Lucky Minerals weren’t entirely on the same page in terms of which of the six issues merited an appeal. The DEQ appealed only two issues, and the court sided with the agency on both.
Now the DEQ has its marching orders: in addition to more fully considering road improvement impacts to wildlife and requiring a more in-depth plan to address water quality concerns, the agency must do a more robust analysis of alternatives to the proposed drilling.
In an emailed statement, a DEQ spokesperson said the agency is “pleased with the results.”
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