Judge Helena orders Gianforte to handle communications with mining company

HELENA — Two environmental groups are positioned to receive previously classified communications nearly 18 months after the documents were requested between Montana Governor Greg Gianforte and Hecla, an Idaho-based company seeking to open two mines in northwestern Montana.

Lewis and Clark County District Court Judge Christopher Abbott on June 23 ordered Gianforte to produce the documents requested by the Montana Environmental Information Center and Earthworks, both nonprofits active in mining issues, the Montana Free Press reports. Abbott cited rights enshrined in the Montana Constitution supporting government transparency in his order directing the governor’s office to turn over the records to MEIC and Earthworks within six weeks.

The groups first requested communications between Gianforte and Hecla in November 2021. When the governor’s office refused to hand them over, citing a communications privilege from the executive and an attorney-client privilege, the groups sue. They argued that Gianforte’s refusal to turn over the documents violates the Montana Constitution’s right-to-know provision, which states that “no one shall be deprived of the right to examine documents or to interfere with the deliberations of all public organs or agencies of the state government and its subdivisions, except in cases where the requirement of individual privacy clearly exceeds the merits of public disclosure.

Attorneys representing Gianforte argued that complying with the request would jeopardize the integrity of the executive’s deliberations and that the existence of a lawsuit over the state’s reversal of the designation of an “evil actor” afforded an attorney-client privilege that protects the records from review. They also argued that given the existing lawsuits over the “bad actor” designation, the appropriate venue for such requests was the discovery process. (The “bad actor” in question is Philip Baker, Jr., a former executive at Zortman-Landusky mining operator Pegasus Gold, who is now Hecla’s CEO.)

In his order, Abbott wrote that “the right to know justifies an interest in government openness and transparency” and that he is unaware that a court will consider the applicant’s motive when assessing whether the government is obligated to provide them . He also noted that while some documents can be protected from disclosure, the proper way to deal with such issues is to create a “privilege log” detailing which documents have been withheld and why.

“The Governor’s Office, like any other public entity, has a clear legal duty under the Constitution and the Executive Statutes to honor requests for public records, regardless of the purpose for which disclosure will be made,” Abbott wrote. “While the decision to withhold a particular document may involve an exercise of discretion, the decision not to produce anything at all without doing that document-by-document review is not.” Hedges said her organization looks forward to the governor’s release of the documents.

“The governor is not above the law,” Hedges said. “We have a fundamental, constitutional right to know what the government is up to, especially when it comes to this administration’s failure to enforce the law against bad actors that have cost the state tens of millions of dollars.”

The governor’s office was not immediately available for comment Monday evening.

Abbott’s order is the latest chapter in a multi-year saga about a 40-year-old gold mine and Hecla’s intent to open two mines in Lincoln County believed to contain significant amounts of silver and copper.

Under former Governor Steve Bullock, a Democrat, the Montana Department of Environmental Quality sought a “bad actor” designation for Hecla’s Baker, arguing that such designation was deserved by the executive positions he held at Pegasus Gold Corps and Zortman Mining. Inc., which went bankrupt, forcing the state to clean up acid mine runoff, which is expected to impact drinking water for generations. After Gianforte, a Republican, took office in 2021, DEQ abandoned that approach after protests from MEIC, Earthworks and the Fort Belknap Indian Community.

MEIC and Earthworks requested general communications between Hecla and Gianforte and material specifically referring to the “bad actor” provision of the Metal Mine Reclamation Act.

Abbott’s order roughly matches an order issued by one of his colleagues last year. In December, Lewis and Clark County District Court Judge Kathy Seeley ordered Gianforte to communicate between the governor’s office and state agency directors about bills before the 2021 legislature. As in this case, the presence of “executive privilege” – or lack thereof – was central to Seeley’s decision.

“Recognizing broad executive privileges would effectively undermine the right to know, as it applies to the executive branch, because any document may inform the governor’s decision-making in some way,” Seeley wrote.

In that case, Seeley ordered the governor’s office to provide materials to the court — rather than directly to the plaintiff — so that it could determine which documents to withhold from the person requesting them, political consultant Jayson O’Neill.