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Fort Belknap tribes sue mining company

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HELENA, Mont. ? Alleging that state officials are in violation of the law, the Assiniboine and Gros Ventre Tribes and three conservation groups are suing the Montana Department of Environmental Quality and a bankruptcy trustee over reclamation plans at the Zortman-Landusky mine complex.

The Fort Belknap tribes, joined by the Montana Environmental Information Center, the National Wildlife Federation and the Mineral Policy Center, contend that "back-up" alternatives to the state's most recent cleanup plan for the mines falls far short of what is needed to restore damaged lands and polluted streams back to even a semblance of their natural state.

The plaintiffs argue that the shortfalls violate the Montana Constitution, which says that "all lands disturbed by the taking of natural resources shall be reclaimed," as well as the state's Metal Mine Reclamation Act.

The lawsuit, filed in Helena's state district court, names as defendants the environmental protection department (DEQ) and Kelvin Buchanan, who serves as trustee for Zortman Mining Inc. and Pegasus Gold Corp. in their ongoing bankruptcy proceedings.

Pegasus and its subsidiary, which operated the mines from 1979 until going bankrupt in 1998, has already forfeited a $29 million bond to the state. A reclamation plan finalized by DEQ in May declares that $33.5 million more is needed to restore the mine sites.

But state officials also included options they say should be used if the additional cleanup money can't be found. The tribes, represented by the Helena-based Indian Law Resource Center (ILRC), have argued that full reclamation will likely cost three or more times that.

"The Fort Belknap Indian community is making it clear they're not going to settle for any kind of second-rate reclamation," says ILRC Executive Director Tim Coulter. "They are insisting on the very best that can be done within reason. We believe the public supports that."

Mining on land that was once within the Fort Belknap Indian Reservation began in the late 1880s, when Peter Zortman and Pike Landusky struck gold in the area. The lawsuit argues that after the discovery, the federal government coerced the tribes into giving up that part of their reserve, which was then allocated as public land. The property is now primarily administered by the federal Bureau of Land Management (BLM).

Zortman Mining Inc. later began operating two cyanide heap-leach mines in the area, which is still surrounded by the reservation on three sides. According to the lawsuit, DEQ officials, working in conjunction with BLM, approved 21 amendments to the original mine-operating permits between 1979 and 1990. The changes allowed the mines to increase from 529 acres to more than 1,200 acres.

The Fort Belknap tribes sued the federal government two years ago, arguing that the BLM had breached its trust responsibility by failing to protect the health of tribal members while signing off on the mine operations. That suit is still pending in U.S. District Court.

In addition, the tribes and two of the conservation groups filed suit in 1997 to stop one of the largest expansion proposals, and the state and federal governments and other private entities have sued the mining companies at various times over violations of water quality laws. A 1996 consent decree provided for expanded water treatment at the site, among other measures, but extensive contamination problems from cyanide and an aftermath of poisonous mine drainage have persisted.

The latest legal action argues that the state's plans for dealing with the problems are woefully inadequate. The lawsuit says tribal members are affected by the reclamation shortfalls because they "live, farm, hunt, fish, obtain drinking and irrigation water and engage in ceremonial practices in the Little Rocky Mountains and downstream of the Zortman and Landusky mine sites."

"Tribal members should not be punished for the failures of the DEQ," says Dean Stiffarm, who works with Fort Belknap's environmental protection program. "We're looking at a situation where our water resources could be polluted forever if we don't get these mines reclaimed right. We will not have a second chance."

At this point, the plaintiffs want the court to declare that the back-up alternatives are illegal because they do not include back-filling the massive mine pits even to the level envisioned in the state's $33.5-million plan, which means more acid-producing rock will be left exposed. The lawsuit also says long-term water treatment is lacking.

"The state is committed to doing everything it can to complete the environmentally preferred alternatives and fund those alternatives," says DEQ Director Jan Sensibaugh. While the state doesn't have the $33.5 million on hand to cover the reclamation costs, it is hoped the federal government will pick up the tab, she says. She adds that the BLM is putting the full amount into its next congressional budget request.

In addition, Sensibaugh says, three cleanup projects at Zortman-Landusky have been funded through the state's Resource Indemnity Trust, and another approximately $2.5 million has been raised through state bond sales. The cap for such bonds, however, is only $8 million, she notes, far short of what is needed.

Coulter says he thinks restoration at Zortman-Landusky will set national standards for the cleanup of other mines across the West, in large part because the Fort Belknap tribes are demanding that the agencies and the bankrupt companies not cut and run.

"We need to see that the (tribes') high standard is being put into effect," he says. "The state and federal governments need to step forward and make a firm commitment to provide the funds that will be needed to do proper reclamation."