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Fort Belknap Tribes file new lawsuit over mining pollution

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HELENA, Mont. - The Assiniboine and Gros Ventre Tribes of the Fort Belknap Indian Reservation allege in a new round of litigation that the Bureau of Land Management, the Montana Department of Environmental Quality and the current owner of the Zortman-Landusky mine complex are violating the federal Clean Water Act.

The lawsuit, filed Jan. 29 in Helena's U.S. District Court, contends that the agencies and Los Angeles resident Luke Ployhar, who holds 71 patented mining claims in the area and owns more than 1,000 acres at the now-closed Zortman-Landusky mines, have failed to establish adequate clean-up measures at the site and are discharging toxins without the proper permits.

In 2002, the Assiniboine and Gros Ventre Tribes and three conservation groups sued the state agency and a bankruptcy trustee over reclamation plans at the complex. The plaintiffs in that case, which is still pending, argue that the restoration shortfalls violate the Montana Constitution's promise that "all lands disturbed by the taking of natural resources shall be reclaimed," as well as the state's Metal Mine Reclamation Act.

Pollution from mine tailings and open-pit excavation in the Little Rocky Mountains continues to pollute streams and groundwater, the tribes say, and the contamination is impacting the adjacent reservation and its residents. They also argue that the quantity of water flowing from the mine areas has been diminished.

The latest civil suit, which seeks increased water treatment and monitoring and civil penalties of up to $27,500 per day of violation against Ployhar, was filed by the Western Environmental Law Center of Eugene, Ore., and Indian Law Resource Center attorney Andrew Huff of Helena. Named as defendants in their official capacity are Jan Sensibaugh, director of the state agency, and Kathleen Clarke, head of the BLM.

Ployhar could not be contacted to comment on the litigation, and Sensibaugh and BLM officials declined to discuss the case because they have not yet been formally served.

Court documents spell out how prospectors trespassing on the Fort Belknap Reservation in 1895 discovered gold in an area that was later removed from the reservation with the promise from the federal government that water resources would be protected and that the tribes would have "ample water for all their needs."

Documents show that large-scale mining was advanced in 1979, when the Montana Department of State Lands issued permits to Zortman Mining Inc., a branch of the now-defunct Pegasus Gold Inc., to use cyanide heap-leaching to remove gold from the surrounding ore. BLM officials also signed off on the operation, which through a series of approved expansions leveled mountain tops and forever disturbed hundreds of acres of land.

The tribes argue that the agencies failed to ensure that enough bond was posted to fully reclaim the sites and that the agencies and Ployhar "have allowed the repeated discharges of several pollutants from acid mine drainage, including mining pits, from the Zortman and Landusky mine sites into numerous streams and gulches ..."

The state and federal agencies took over reclamation responsibilities after Pegasus and its subsidiaries filed for Chapter 11 bankruptcy in 1998, action that forced taxpayers to start picking up much of the clean-up tab after the company's $29 million bond was forfeited.

A reclamation plan finalized by the state two years ago declared that $33.5 million more was needed to restore the mine sites, but the Fort Belknap Tribes argue that perhaps triple or more of that amount will actually be required. So far, Congress and the Montana Legislature have failed to come up with even the minimal level of funding for further restoration.

"Preliminary 'interim' reclamation activities began in November 1999 and have ceased due to lack of funds," the tribes note in their filing. Tribal leaders also contend that National Pollution Discharge Elimination System permits were never issued at Zortman-Landusky, as required, and that even then "the discharges that have occurred and are likely to continue would violate the terms of a legally issued permit."

"The water pollution is just not getting cleaned up and we have to bring this lawsuit to protect our people and water," Fort Belknap Indian Community Council Chairman Ben Speakthunder said in a prepared statement. "The area is still so contaminated that even the water treatment plants are discharging polluted water."

"Whatever the responsible parties have been doing in the name of reclamation is just not working," added Charlie Tebbutt, an attorney with the Western Environmental Law Center, a nonprofit, public interest group. "The pollution is ongoing and must be addressed."

In 2000, the Fort Belknap Tribes also sued the BLM, the BIA, and the Indian Health Service for allegedly breaching their trust responsibilities by allowing the federal permitting and multiple expansions at Zortman-Landusky and for "failing to properly protect tribal health and resources from the impacts of mining."

The agencies, they said, violated provisions of the 1851 Treaty of Fort Laramie, the ensuing Grinnell Agreement and other related actions, the National Historic Preservation Act, the Native Grave Protection and Repatriation Act and the Federal Land Policy Management Act, in part for failing to protect tribal grave sites in the area and by causing "unnecessary and undue degradation" of publicly-owned lands.

That case is tentatively set to go to trial in Missoula on Feb. 23 before U.S. District Judge Donald Molloy.