In a landmark decision issued in October 1999, the Montana Supreme Court ruled unanimously that Montanans' constitutional right to a clean and healthful environment is a fundamental right and one that it is intended to be preventive in nature.

The sweeping decision was in response to an appeal filed by MEIC and Women's Voices for the Earth (WVE) of a 1996 decision by State district judge Jeffrey Sherlock of Helena. The original suit was filed because the Montana Department of Environmental Quality had allowed the Seven-Up Pete Joint Venture to pump, without any treatment, millions of gallons of arsenic-tainted water into the Landers Fork and Blackfoot Rivers in 1995. MEIC, the Clark Fork-Pend Oreille Coalition (which dropped out of the appeal to the Supreme Court) and WVE claimed that the discharges violated the Montana constitution's right to a clean and healthful environment provision, and that the exemption in law under which they were allowed was unconstitutional.

The central issue in the appeal was whether the constitution's protections only apply after actual harm to public health or the environment has occurred, as Judge Sherlock had held.

In an opinion written by Justice Terry Trieweiler, the Supreme Court concluded that exactly the opposite is the case, saying: "Our constitution does not require that dead fish float on the surface of our state's rivers and streams before its farsighted environmental protections can be invoked." The Court also said: "We conclude that the (Constitutional Convention) delegates' intention was to provide language and protections which are both anticipatory and preventative."

The Supreme Court returned the case to Sherlock for him to apply the constitutional provisions correctly.

MEIC's executive director Jim Jensen praised the decision's effect on the plethora of anti-environment bills passed by the legislature and signed by Gov. Marc Racicot in 1993 and 1995. He said: "I think this decision represents a condemnation of Marc Racicot's legacy, as it relates to natural resource policy." DEQ director Mark Simonich defended the governor saying: "I don't see this decision as rebuking Gov. Racicot or the Legislature. There are some questions that still need to be answered by the District Court (which) will decide whether the Legislature acted legally."

The original case stemmed from DEQ's action in allowing the Seven-Up Pete Joint Venture to pump water during 1995 out of three deep wells just north of the proposed mine site eight miles east of Lincoln. The water was pumped into shallow pits — called infiltration galleries — dug next to both the Landers Fork and Blackfoot Rivers. The water then drained down through the gravelly soil and into the rivers. The suit was brought in October 1995. DEQ authorized another season of pumping in 1996, at which time the groups unsuccessfully attempted to get Sherlock to stop the pump tests until he had ruled on the original case. He denied the request for an injunction, but allowed the suit to proceed. He ultimately dismissed the suit, saying he could not decide the constitutionality of the law unless the groups showed that environmental damage had occurred. They had not made that showing, he said.

Tests at the wells showed arsenic concentrations of 36 to 55 parts per billion, far above the State standard of 18 ppb. And the 18 ppb standard was the result of a 1,000 fold weakening of the previous standard by the 1995 legislature. In addition, the water contained iron, zinc, and manganese in excess of State standards.

The 1995 legislature also passed Senate Bill 331, which included two blanket exemptions from the State's non-degradation policy. One said that any water discharge resulting from mining exploration activities was, by definition, nonsignificant and therefore exempt from any review under the non-degradation policy. The other exemption said that any water discharge resulting from pump tests of wells was also, by definition, nonsignificant and exempt from any review, as long as the water pumped out of the ground was not altered in any way before it was discharged.

The law did say that this pumping could only take place if the receiving water did not, as a result, exceed State standards. However, receiving waters never exceed State standards because DEQ always grants a mixing zone (an area where concentrations of pollutants are allowed to exceed standards) to the discharger which is always large enough that the standards are not violated at its downstream edge where compliance measurements are taken.

The Supreme Court's ruling says that blanket exemptions such as these are unconstitutional unless the State can show a compelling State interest for granting such exemptions. And it may well mean that mixing zones are similarly unconstitutional.

The lawyers for MEIC and the other environmental groups were Tom France of the National Wildlife Federation in Missoula and Kim Wilson of Helena, a former chairman of MEIC's board of directors, both highly regarded environmental lawyers. The losing counsel were John North of DEQ, and Rebecca Watson of the Helena firm of Gough, Shanahan, Johnson and Waterman, representing the mining company.

FOR MORE DETAIL ABOUT THE CASE, READ THE SUPREME COURT OPINION AFFIRMING MONTANANS' RIGHT TO A CLEAN AND HEALTHFUL ENVIRONMENT.