By Amanda Eggert MONTANA FREE PRESS
Judge Abbott sided with two environmental groups in an order upholding the Montana Constitution’s right to know.
Two environmental groups are positioned to receive previously undisclosed communications between Montana Gov. Greg Gianforte and Hecla, an Idaho-based company seeking to open two mines in northwestern Montana, nearly 18 months after requesting the documents.
Lewis and Clark County District Court Judge Christopher Abbott on June 23 ordered Gianforte to produce the records sought by Montana Environmental Information Center and Earthworks, both nonprofits active in mining issues. Abbott cited rights enshrined in the Montana Constitution that support government transparency in his order, which directs the governor’s office to turn over the records to MEIC and Earthworks within six weeks.
The groups first requested the communications between Gianforte and Hecla in November of 2021. When the governor’s office declined to turn them over, citing an executive communications privilege and an attorney-client privilege, the groups filed a lawsuit. They argued that Gianforte’s refusal to turn over the records violates the right-to-know provision of the Montana Constitution, which holds that “no person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”
Attorneys representing Gianforte argued that complying with the request would compromise the integrity of the executive branch’s deliberations and that the existence of a lawsuit over the state’s course-reversal of a “bad actor” designation established an attorney-client privilege that shields the records from review. They also argued that the proper venue for such requests, given existing litigation over the “bad actor” designation, was the discovery process. (The “bad actor” at issue is Philip Baker, Jr., a former executive with Zortman-Landusky mine operator Pegasus Gold who’s now the CEO of Hecla.)
In his order, Abbott wrote that “the right to know vindicates an interest in openness and transparency in government” and that he’s unaware of a judge taking into account the requestor’s motive in an evaluation of whether the government is required to produce them. He also noted that while some records might be protected from disclosure, the proper way to handle such issues is to produce a “privilege log” detailing which documents were withheld and why.
“The Governor’s Office, like any other public body, has a clear legal duty under the Constitution and the implementing statutes to honor public records requests regardless of the purpose to which disclosure will be put,” Abbott wrote. “While the decision whether to withhold any 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.”
In a release about Abbott’s order, MEIC co-director Anne Hedges said her organization is looking forward to the governor’s release of the records.
“The governor is not above the law,” Hedges said. “We have a fundamental, constitutional right to know what government is up to, especially when it regards this adminitsrations’ failure to enforce the law against bad actors who 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 involving a 40-year-old gold mine and Hecla’s intent to open two mines in Lincoln County that are believed to hold sizable deposits of silver and copper.
Under former Gov. Steve Bullock, a Democrat, the Montana Department of Environmental Quality sought a “ bad actor” designation for Hecla’s Baker, arguing that such a designation was merited by the executive-level positions he held at Pegasus Gold Corps and Zortman Mining, Inc., which went bankrupt, leaving the state to clean up acid mine drainage that’s expected to impact drinking water for generations. After Gianforte, a Republican, took office in 2021, DEQ abandoned that approach over protests from MEIC, Earthworks and the Fort Belknap Indian Community.
MEIC and Earthworks requested general communications between Hecla and Gianforte and material specifically citing the “bad actor” provision of the Metal Mine Reclamation Act.
Abbott’s order is roughly consistent with an order issued by one of his colleagues last year. In December, Lewis and Clark County District Court Judge Kathy Seeley ordered Gianforte to produce communications between the governor’s office and state agency directors regarding bills before the 2021 Legislature. As in this case, the presence of an “executive privilege”—or lack thereof—was central to Seeley’s decision.
“Recognizing broad executive privileges would effectively gut the right to know as it applies to the Executive Branch because every document may inform the Governor’s decision making in some way,” Seeley wrote.
In that instance, Seeley ordered the governor’s office to produce material to the court—rather than the plaintiff directly—so she could determine which records should be withheld from the individual requesting them, political consultant Jayson O’Neill.