Election 2018 – Initiative 186

The controversy over ballot Initiative 186 seems to be about two competing visions for Montana's future economy, and water quality underlies them both.

The ballot measure, if passed, would amend the state's 1971 Metal Mine Reclamation Act to provide for an additional $115,000 to $118,000 in annual revenue for Montana's Department of Environmental Quality. The money would be used to analyze pollution cleanup plans in new mining permits.

The initiative supported by the Yes for Responsible Mining coalition is backed by Montana Trout Unlimited, among others. David Brooks is TU's executive director and the coalition's primary spokesperson.

Brooks said mines are still permitted to leave behind sources of permanent water pollution. The initiative would give DEQ the money to hire someone to analyze mine permit applications to determine whether they offer clear and convincing evidence that their reclamation plans will work.

As outlined in the initiative, "clear and convincing" means that the plan needs to demonstrate "measures sufficient to prevent the pollution of water without the need for perpetual treatment." The new guidelines would not apply to permits approved before Nov. 6, 2018.

Brooks said the measure intends to hold future mines to higher standards of accountability and transparency. He added that old mines, such as those at Beal Mountain and Zortman-Landusky, are still paying for the long-term environmental impacts caused as many as 16 years ago.

In testimony to the Environmental Quality Council in May, Brooks highlighted the story of the Zortman mine. That mine closed after filing for bankruptcy, Brooks said, and at least $30 million of state and federal funding went to the initial clean-up of the mine while taxpayers continue to contribute $1 million to $2 million per year in additional water treatment and reclamation costs.

But opponents, led by the Stop I-186 coalition, doubt the measure would result in the transparency Brooks envisions. Dave Galt, the group's spokesman and a former head of the Montana Petroleum Association, said I-186 is vague, which would make it hard to enforce.

That concern moved Montana Attorney General Tim Fox to attach the following language to the ballot: "The terms 'perpetual treatment,' 'perpetual leaching,' and 'contaminants' within I-186 are not fully defined and would require further definition from the Montana Legislature or through Department of Environmental Quality rulemaking."

Brooks said language added by Fox and supported by Secretary of State Corey Stapleton, both Republicans, shows a bias.

"The Attorney General and Secretary of State have decided to editorialize what is on the ballot," Brooks said. "They biased this initiative negatively."

Requiring potential mines to meet a "clear and convincing" evidence standard is not vague, Brooks said, adding that the phrase is well understood by judges and is a common standard in environmental law. He also said defining the terms in a new statute is the Legislature's job and should not be seen as an obstacle.

But opponents such as state Rep. Kerry White, a Bozeman Republican and chair of House Natural Resources Committee, said the initiative's passage would lead to years of litigation, "scaring off" big companies that hope to come to Montana.

"All of this will just go to court over how long, and to what standard, the water must be treated," White said. "There is not a lot of education surrounding these issues, especially on who should be held accountable."

White also said Brooks' group doesn't really want clean water. "If they did, they would do something about managing the forest and wildfires," he said.

Brooks stressed that the initiative would not reverse any past damage or affect present mining operations. But it could protect future water quality and prevent further environmental degradation, he added.

The two sides appear to agree on one issue – safeguarding jobs. The Stop I-186 campaign says the industry is responsible for 12,000 jobs and over $42 million in revenue, and warns passage of this measure could devastate these numbers.

Brooks said he appreciates concerns about mining jobs, but added that the initiative's passage could boost jobs in other large Montana economic sectors, including outdoor recreation. Preservation of the outdoors will lure "top-notch corporate employees" to Montana, he said.

The idea that mining companies are passing these costs off to taxpayers has the support of groups that include the Montana Public Interest Research Group, a student-driven nonprofit organization based at the University of Montana; Our Revolution, a nonprofit that advocates for U.S. Senator Bernie Sanders' policies; the Park County Environmental Council; and the mayors of Missoula, Helena, Great Falls, Whitefish and Bozeman.

In last spring's hearing, Rep. White said "not a dime" of tax dollars has been used to clean up Montana mine sites, adding that cleanup costs have mostly been covered by the industry taxes, insurance and the companies themselves.

Kristi Ponozzo, the DEQ's public policy director, said mining companies do contribute significantly to cleanup costs, but added that state and federal taxpayers contribute as well. "Yes," she said. "Taxpayer dollars have been used on mine cleanup. Period."

Much of that taxpayer money has been spent on problems caused by historic mining, she said, adding that much of the cost of cleaning up more modern mining problems have been covered by money mine owners have dedicated for such events.

Brooks pointed to a Sept. 2018 study prepared for Montana Trout Unlimited and the environmental organization Earthworks, which identified more than $50 million in state and federal spending, plus $20.4 million from state trust funds, to clean up pollution at the Basin Creek, Beal Mountain and Zortman-Landusky mines. It estimates $1.9 million a year in onging costs to perpetually treat water at the Beal and Zortman sites.

Opponents of the initiative also include the Montana Mining Association and Montana Contractors' Association. The groups have played a role in legislating mining policy in the past. In 2004, the mining industry unsuccessfully campaigned for I-147, which aimed to repeal an earlier voter-approved ban on expanding open pit, heap-leach mining in Montana.

This story was produced by the Community News Service, a service of the University of Montana School of Journalism. Please contact student reporter [email protected] if you have questions.