Robert T. Coulter Andrew I. Huff Indian Law Resource Center 602 North Ewing Street Helena, Montana 59601 Tel: (406)449-2006 Counsel for Plaintiffs Gros Ventre Tribe, Assiniboine Tribe, and the Fort Belknap Indian Community Council

David K.W. Wilson, Jr. Reynolds, Motl and Sherwood 401 N. Last Chance Gulch Helena, Montana 59601 Tel: (406)442-3261 Counsel for Plaintiffs Montana Environmental Information Center and Mineral Policy Center

Thomas France 240 North Higgins Missoula, Montana 59802 Tel: (406)721-6705 Counsel for Plaintiff National Wildlife Federation

MONTANA FIRST JUDICIAL DISTRICT COURT LEWIS AND CLARK COUNTY

ASSINIBOINE AND GROS VENTRE ) TRIBES AND FORT BELKNAP INDIAN ) COMMUNITY COUNCIL; MONTANA ) ENVIRONMENTAL INFORMATION ) CENTER; MINERAL POLICY CENTER, ) NATIONAL WILDLIFE ) Cause No. ADV-2002-473 FEDERATION, Plaintiffs ) ) AMENDED COMPLAINT v. ) ) MONTANA DEPARTMENT OF ) ENVIRONMENTAL QUALITY, ) KELVIN BUCHANAN IN HIS ) CAPACITY AS BANKRUPTCY ) TRUSTEE FOR ZORTMAN MINING, ) INC., ) Defendants ) ______) COME NOW Plaintiffs the Assiniboine and Gros Ventre Tribes and the Fort Belknap

Indian Community Council, the Montana Environmental Information Center, the Mineral Policy

Center, and the National Wildlife Federation, pursuant to Rule 15, M.R.Civ.P., with their

Amended Complaint, and allege as follows:

I. Introduction

1. This complaint challenges aspects of the reclamation and water treatment activities and plans at the abandoned Zortman and Landusky mine sites of north-central Montana, as described by the Montana Department of Environmental Quality (DEQ) in its May 2002 Record of

Decision (ROD) and in subsequent agency actions and documents. The ROD, released on May

3, 2002, selects preferred and back-up reclamation plans that modify the reclamation plans in the mining Operating Permits currently held by ZMI bankruptcy trustee Kelvin Buchanan.

2. This complaint arises under and alleges violations of the Montana Constitution, Article

IX, §§1,2, and Article II, §3; the Montana Uniform Declaratory Judgments Act, §§ 27-8-201,

202, MCA (2001); and the Montana Metal Mine Reclamation Act, §82-4-301, et seq., MCA

(2001).

II. Parties

3. The Assiniboine and Gros Ventre Tribes of the Fort Belknap Reservation (the Tribes) together form the Fort Belknap Indian Community. The Fort Belknap Indian Community

Council is the duly constituted government of the Fort Belknap Indian Community, with jurisdiction over lands and waters affected by the reclamation of the Zortman and Landusky mine sites. The Tribes have over 5,000 members, many of whom live on or near the Fort Belknap

Reservation. Tribal members live, farm, hunt, fish, obtain drinking and irrigation water, and

2 engage in ceremonial practices in the Little Rocky Mountains and downstream of the Zortman and Landusky mine sites. Inadequate reclamation and water treatment measures at the Zortman and Landusky mine sites are having, and will continue to have, a direct, deleterious and long- lasting impact on the environment, health and welfare of tribal members. The seat of the Fort

Belknap Indian Community government is located at Fort Belknap Agency, Montana.

4. The Montana Environmental Information Center (MEIC) is an incorporated Montana organization with approximately 5,000 members, state and nation-wide. MEIC, formed in 1973, has for 29 years been actively engaged in issues relating to the protection of air, water and lands in Montana from pollution, and the wise use of Montana’s natural resources including its mineral resources. MEIC has members who regularly fish, hunt, recreate and view wildlife on the public lands and waters in the vicinity of the Zortman and Landusky mine sites. Inadequate reclamation and water treatment measures at the Zortman and Landusky mine sites are having, and will continue to have, a direct and deleterious impact on the recreational and aesthetic interests of

MEIC’s members. The headquarters of the MEIC is located in Helena, Montana.

5. The Mineral Policy Center (MPC) is a national non-profit organization dedicated to protecting communities and the environment from the adverse impacts of hardrock mineral development in the U.S. and worldwide. MPC fulfills its mission by supporting communities and grassroots groups by publicizing the impacts of mining and by working to improve government policies and corporate practices. MPC has worked closely with the Montana

Environmental Information Center and others over the last decade in relation to closure and reclamation issues at the Zortman and Landusky mines. MPC has members who regularly fish, hunt, recreate and view wildlife on the public lands and waters in the vicinity of the Zortman and

3 Landusky mine sites. Inadequate reclamation and water treatment measures at the Zortman and

Landusky mine sites are having, and will continue to have, a direct and deleterious impact on the recreational and aesthetic interests of MPC’s members. MPC is based in Washington, D.C. with a field office in Missoula, Montana.

6. The National Wildlife Federation (NWF) is a national non-profit conservation organization with more than 5 million members, including 3,000 members in Montana. NWF is the largest conservation education organization in the United States and has been actively involved in fish and wildlife issues for over 50 years. The goals of the NWF are to protect and enhance wildlife and its habitat throughout the United States. Members of the NWF regularly hunt, fish, hike and otherwise use the public lands in the vicinity of the Zortman and Landusky mine sites. Inadequate reclamation and water treatment measures at the Zortman and Landusky mine sites are having, and will continue to have, a direct and deleterious impact on the recreational and aesthetic interests of NWF’s members. The headquarters of the National

Wildlife Federation is located in Vienna, Virginia, with a regional office in Missoula, Montana.

7. Defendant Montana Department of Environmental Quality (DEQ) is a department of the executive branch of state government. The DEQ is charged with permitting and regulating hard rock mines in the State of Montana. As a state agency, the DEQ must comply with the

Montana Constitution and with the Montana Metal Mine Reclamation Act, §82-4-301, et seq.,

MCA (2001).

8. Defendant Kelvin Buchanan is the trustee in bankruptcy for Zortman Mining,

Incorporated. Mr. Buchanan is named solely in his capacity as the current holder of DEQ

Operating Permits Nos. 00096 and 00097 for conducting operations at the Zortman and

4 Landusky mines. This civil action is not taken against Mr. Buchanan in his individual capacity or against his personal or individual assets.

III. Jurisdiction and Venue

9. Plaintiffs invoke the jurisdiction of this court pursuant to Article VII, §4 of the

Montana Constitution, the Montana Uniform Declaratory Judgments Act, §§ 27-8-201, 202,

MCA (2001), and the Montana Metal Mine Reclamation Act, §82-4-349 and/or §82-4-354, MCA

(2001).

10. Venue lies in this judicial district by virtue of §25-2-126(1), MCA (2001), and § 82-

4-349 and/or § 82-4-354, MCA (2001), because defendant DEQ is an executive branch of the state government and is headquartered in Lewis and Clark County.

11. Plaintiff Tribes and the Fort Belknap Indian Community Council consent to the jurisdiction of this Court to decide only the specific issues raised in this Complaint. The Tribes and the Fort Belknap Indian Community Council reserve their sovereign immunity in all other respects, and do not consent to the jurisdiction of this Court to award attorney fees or costs against the Tribes, the Community Council or its members.

12. A real and actual controversy exists between the parties. Plaintiffs have no other adequate remedy at law and no adequate remedy of any nature other than this action for declaratory relief. Plaintiffs have been injured as a result of the violations complained of herein, and their injury will continue unless these violations are declared unlawful.

IV. General Allegations

13. The Zortman and Landusky mine sites are located in the Little Rocky Mountains of north-central Montana. The Little Rockies were once entirely within the original reservation

5 boundaries of the Fort Belknap Indian Reservation. When gold was discovered in the Little

Rockies in the late 1880's, the federal government pressured the Assiniboine and Gros Ventre

Tribes to cede the gold-bearing areas of the reservation to the United States, including the areas which are the subject of this Complaint. The Zortman and Landusky mine sites, although not on reservation land, are surrounded on three sides by the Fort Belknap Indian Reservation.

14. Pegasus Gold Corporation and its wholly owned subsidiary, Zortman Mining,

Inc.(ZMI), operated the Zortman and Landusky mines from 1979 until 1998, pursuant to operating permits issued jointly by the DEQ and its predecessor agency the Montana Department of State Lands, and the federal Bureau of Land Management (BLM). Between 1979 and 1990, the DEQ issued a total of 21 amendments to the original operating permits to ZMI, increasing the size of the Zortman and Landusky mines from 529 acres to a total of 1,215 acres.

15. When in operation, ZMI employed open-pit, cyanide heap-leaching technology to extract microscopic particles of gold from massive amounts of pulverized ore from the Zortman and Landusky mines. ZMI’s heap-leaching process destroyed vast areas at two separate sites in the Little Rocky Mountains. Pollutants from each site affect both the north side of the mountains, where the reservation is located, and the south side, where the small mining communities of Zortman and Landusky are located. When in operation, cyanide and acid mine drainage contaminated surface and ground waters hydrologically connected to the mines. Now that mining has ceased, acid mine drainage and other contaminants such as cyanide, selenium and nitrates continue to contaminate surface and ground waters hydrologically connected to the mines, and will perpetually pollute surface and ground waters if the area is not effectively reclaimed, including effective water treatment measures.

6 16. Beginning in 1993, several law suits were filed against ZMI and Pegasus by the

Montana Department of Health and Environmental Sciences, the Environmental Protection

Agency, Island Mountain Protectors, and the Fort Belknap Indian Community Council. These parties alleged numerous, significant, and ongoing violations of the Federal Clean Water Act and the Montana Water Quality Act. These law suits were resolved in September of 1996 with the signing of a Consent Decree requiring, among other things, the construction and operation of water capture and treatment facilities at both mine sites. The facilities were built and are now in operation at the sites.

17. Under the Consent Decree, Pegasus Gold Corporation posted a bond and set up a trust account to pay for the near- and long-term operation of the water capture and treatment facilities. These arrangements were for the purpose of guaranteeing a source of operation and maintenance funding in the event that Pegasus Gold Corporation became unable to directly pay for continued water treatment measures. The near-term bond provides $731,000 annually from

1997 to 2017 (a 20-year bond). The long-term trust account was to provide enough money to run the water treatment plants in perpetuity after the year 2017. Due to mistakes in the calculation of the amount needed in the trust account, however, long-term water treatment will last only until

2028.

18. In October of 1996, the DEQ approved a massive expansion of the mines which proposed to triple the overall size of the sites. This decision resulted in a law suit filed in 1997 by the Tribes, the NWF, and the MEIC against the DEQ, alleging violations of the Montana

Constitution, the Montana Environmental Policy Act, and the Montana Metal Mine Reclamation

Act (Cause No. ADV-9700034). On January 16, 1998, in the midst of procedural motions before

7 the Montana Supreme Court in the litigation, ZMI and Pegasus declared bankruptcy. Under a bankruptcy agreement negotiated as part of the bankruptcy case, the state of Montana agreed to hold ZMI’s bonds and to take responsibility for water treatment and reclamation at the mine sites.

19. The bankruptcy of ZMI and Pegasus forced the DEQ to select different closure and reclamation plans than those approved under the proposed expansion of the mines. These new closure and reclamation plans were invalidated on November 20, 1998, in a separate proceeding initiated by the Tribes, the IMP, and the NWF against the BLM before the federal Interior Board of Land Appeals (IBLA). The IBLA ruled that the EIS pursuant to which the DEQ and the BLM chose their reclamation options violated the BLM’s trust obligations to the Tribes, and ordered the BLM to further analyze the mine sites and consult with the Tribes.

20. After two years of discussion and technical analysis at the mine sites, the DEQ agreed with the Tribes and the Fort Belknap Indian Community Council that a new environmental study was needed to develop and assess fresh reclamation alternatives. In

December of 2001, the DEQ released its final Supplemental Environmental Impact Statement

(SEIS), analyzing six reclamation alternatives for each mine site (Z1-6 and L1-6). On May 3,

2002, the DEQ released its ROD selecting both preferred reclamation alternatives and back-up reclamation alternatives for the mine sites.

21. The ROD identifies alternatives Z6 and L4 as the preferred alternatives for reclaiming the Zortman and Landusky mine sites. As stated on page 31 of the ROD, “[T]he

BLM and DEQ hereby select Alternative Z6 for reclamation of the Zortman Mine and

Alternative L4 for reclamation of the Landusky Mine. These alternatives will best meet the purpose and need to reclaim the mines with a reasonable assurance of long-term success in

8 meeting State and Federal requirements for mine reclamation, while protecting human health, the environment, and trust resources. Implementation of the selected alternatives is contingent upon the availability of funding.”

22. The Record of Decision also selects back-up reclamation alternatives. These back- up plans, identified as alternatives Z3 and L3, are specifically designed to stay within the bond amounts currently held by the DEQ. As stated on page 39 of the ROD, “Alternatives Z3 and

L3 have been selected in case the funding for reclamation is limited to the amounts available from the reclamation bonds.” Serious problems with the back-up reclamation plans have compelled the Environmental Protection Agency to rate the back-up alternatives as

“environmentally objectionable.”

23. Since the original filing of this law suit in July of 2002, substantial reclamation has been completed at the sites. With the major exception of the Alder Gulch waste rock dump, most of the earth-moving reclamation measures provided for in the preferred reclamation plans have been or will be completed. According to the DEQ, cost-saving measures and low contractor bids have enabled the completion of these projects within current bond amounts.

24. However, the Alder Gulch waste rock dump removal project remains unfunded and incomplete. Under preferred alternative Z6, the upper portion of the Alder Gulch waste rock dump would be removed and used as backfill to insulate the highwalls of the North Alabama pit. After placement against the highwalls of the North Alabama pit, the materials from the waste rock dump, which are acid-producing, would be covered with a synthetic liner and topsoil to limit the infiltration of water into the waste rock. Without $1.53 million in additional funding, the Alder Gulch waste rock dump will remain in its current location at the headwaters

9 of Alder Gulch with no synthetic liner to prevent water infiltration, leaving the highwalls of the

North Alabama pit exposed.

25. Both the preferred reclamation alternatives and the back-up reclamation alternatives require mechanical water capture and treatment. The water treatment plants must continue to operate in perpetuity in order to ensure that surface and ground waters contaminated with acid mine drainage do not migrate away from the mine sites and pollute downstream water resources. In order to assure that existing water treatment systems may continue to operate after 2028, an additional $12.4 million is needed in 2004 dollars (this figure assumes investment of $12.4 million in principle and a 6% return in order to guarantee an on- going source of money for water treatment). If this principle investment is not obtained by the

DEQ then water treatment will last, optimistically, until 2028, at which time treatment will cease and massive contamination of surface and ground waters will occur. As stated in the

Record of Decision, “Without additional funding, the capture and treatment systems cannot be maintained beyond year 2028, and significant environmental damage could occur.” 2002

ROD, at 36. The longer the water treatment monies remain lacking, the greater the initial principle investment will be necessary in order to guarantee an on-going source of money for water treatment after 2028.

26. The 2001 SEIS included draft water quality permits (MPDES) setting limits for specific pollutants at the sites. The 2002 ROD states on page ‘i’, “The DEQ is also approving the Montana Discharge Elimination System (MPDES) permits for mine discharges to waters of the State as written in Appendix C of the Final SEIS.” The DEQ, however, has refused to implement the draft MPDES permits as stated in the ROD.

10 27. In the near-term, environmental degradation and violations of water quality standards are occurring at and around the sites and will continue unabated if existing water treatment systems are not improved.

28. Swift Gulch, a stream with its headwaters just below the open pits of the Landusky mine and running north onto the Fort Belknap Indian Reservation, has since the filing of the original Complaint in this matter become extremely contaminated. Sulfate, cadmium, iron, nickel and zinc pollution has been increasing dramatically, and the stream has turned a bright orange color throughout most of its length. The stream has also become acidic. Existing water treatment measures do not include any plan to address the recent and massive contamination of

Swift Gulch. Furthermore, King Creek – another stream running on to the reservation – is contaminated with selenium from the mine sites. King Creek is not treated under the existing water treatment systems.

29. Public records, water quality monitoring reports, and evidence obtained through discovery since the original filing of this case show that existing water treatment systems are not adequate to protect water quality in other surface and ground waters hydrologically connected to the mine sites, and in fact contribute to environmental degradation. Many of the surface and ground waters in the vicinity of the mines exceed draft MPDES limits for various pollutants, primarily nitrate, iron, cyanide, arsenic and selenium. Sulfate contamination is a serious problem throughout the area.

30. Rather than safely disposing of contaminants that are removed by the two lime precipitation water treatment plants at the sites, highly toxic sludge produced by the treatment plants is buried by DEQ contractors back into the leach pads where it originated. This process

11 creates a permanent pollution loop and prevents the detoxification of the sites.

31. Much of the water at the sites, even after treatment in the lime precipitation and biological treatment plants, is too toxic to be released into surface waters. This water is pumped to lands south of the Little Rocky Mountains know as the “Land Application Disposal” area (LAD) and sprayed directly onto the ground. The DEQ has acknowledged that eventually the LAD area will become toxic due to salinization of the soil, and spraying will have to be moved to a different site.

32. DEQ has acknowledged that the spraying of contaminated waters at the LAD site has contaminated adjacent surface and ground waters with selenium, cyanide and nitrate.

33. The DEQ has acknowledged that there is currently no source and no plan to make up for the known funding shortfalls for long-term water treatment at the sites. Further, there is no plan to improve existing water treatment systems so that all surface and ground waters emanating from the sites consistently meet draft MPDES permit standards.

34. Pursuant to MMRA, §82-4-354, MCA (2001), plaintiffs Fort Belknap Indian

Community Council and Montana Environmental Information Center have filed affidavits with the DEQ giving written notice of violations of the Montana Constitution and the Montana

Metal Mine Reclamation Act by the DEQ.

V. Causes of Action

Alder Gulch

COUNT 1: Leaving the Alder Gulch waste rock dump unreclaimed at the headwaters of Alder Gulch violates Article IX, section 2 of the Constitution of the State of Montana.

12 35. Paragraphs 1- 34, above, are realleged as though set forth in full hereunder.

36. Article IX, section 2 of the Constitution of the State of Montana, provides that, “All lands disturbed by the taking of natural resources shall be reclaimed. The legislature shall provide effective requirements and standards for the reclamation of lands disturbed.”

37. In leaving the Alder Gulch waste rock dump in place pursuant to back-up reclamation option Z3, the DEQ deliberately foregoes – for purely financial reasons – the technically feasible, environmentally superior preferred reclamation alternative of removing the upper portion of the waste rock dump and backfilling it into the North Alabama pit. The materials in the Alder Gulch waste rock dump are known to be highly acid-producing and toxic. Under the back-up reclamation alternative, the Alder Gulch waste rock dump will be left in place and covered with a thin layer of topsoil. This plan greatly increases the likelihood of surface and ground water contamination in Alder Gulch. Article IX, section 2 of the Montana

Constitution does not countenance the implementation of an ineffective reclamation plan because it is less costly than a practical and environmentally superior plan.

COUNT 2: Leaving the Alder Gulch waste rock dump unreclaimed at the headwaters of Alder Gulch violates the Montana Metal Mine Reclamation Act, Sections 82-4-336 (9)(b), (10), and (12) .

38. Paragraphs 1- 37, above, are realleged as though set forth in full hereunder.

39. Section 82-4-336 (9)(b) of the MMRA provides that,

(B) With regard to open pits and rock faces, the reclamation plan must provide for reclamation to a condition: (i) of stability structurally competent to withstand geologic and climatic conditions without significant failure that would be a threat to public safety and the environment; (ii) that affords some utility to humans or the environment; and (iii) that mitigates post-reclamation visual contrasts between reclamation lands

13 and adjacent lands;

40. Under back-up alternative Z3, rock faces in the North Alabama pit and the materials in the Alder Gulch waste rock dump will be left unreclaimed. Because the waste rock materials, if left in place, will produce increased amounts of acid mine drainage than would be produced under the preferred alternative Z6, greater stress will be placed on mechanical water capture and treatment systems to ensure that the public safety and the environment are not threatened by contaminated water. These water capture and treatment systems, without the insulation and filtering provided by better engineered reclamation covers and more extensive backfilling, cannot withstand climatic conditions and have in fact already failed numerous times during storm events in the Little Rockies. (SEIS 6-53). Further, unreclaimed rock walls afford no utility to humans or to the environment and emphasize post- reclamation visual contrasts between reclaimed lands and adjacent lands rather than mitigating them. These conditions violate MMRA § 82-4-336 (9)(b).

41. Section 82-4-336 (10) of the MMRA provides that, “The reclamation plan must provide sufficient measures to ensure public safety and to prevent the pollution of air or water and the degradation of adjacent lands.”

42. Leaving the Alder Gulch waste rock dump in place unnecessarily degrades Alder

Gulch, which is adjacent to the Zortman mine site, and increases the likelihood of surface and ground water contamination in Alder Gulch in violation of MMRA § 82-4-336 (10).

43. Section 82-4-336 (12) provides that, “The reclamation plan must provide for permanent landscaping and contouring to minimize the amount of precipitation that infiltrates into disturbed areas that are to be graded, covered, or vegetated, including but not limited to

14 tailings impoundments and waste rock dumps; The plan must also provide measures to prevent objectionable postmining ground water discharges.”

44. Leaving the Alder Gulch waste rock dump unreclaimed at the headwaters of Alder

Gulch, covered with only a thin layer of soil, does not minimize water infiltration to the same extent as a synthetic barrier and increases the danger of ground water contamination in violation of MMRA § 82-4-336 (12).

Existing Water Treatment Measures

COUNT 3: Existing water treatment measures violate Article II, section 3 of the Constitution of the State of Montana.

45. Paragraphs 1 - 44, above, are realleged as though set forth in full hereunder.

46. Article II, section 3 of the Constitution of the State of Montana provides in relevant part that, “All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment . . . .”

47. Existing water capture and treatment systems at the Zortman and Landusky mine sites are unable to treat waters such that basic draft MPDES standards are met. At least two streams, King Creek and Swift Gulch, are contaminated but go entirely untreated. Existing water capture and treatment systems also rely on the burial of highly contaminated sludge from the water treatment plants at the mine sites and on the Land Application Disposal of severely contaminated waters on lands adjacent to the sites. These measures, in allowing surface and ground water contamination to continue and in causing the degradation of lands, violate the right of Montana citizens to a clean and healthful environment.

COUNT 4: Existing water treatment measures violate MMRA Section 82-

15 4-336 (10).

48. Paragraphs 1 - 47, above, are realleged as though set forth in full hereunder.

49. Section 82-4-336 (10) of the MMRA provides that, “The reclamation plan must provide sufficient measures to ensure public safety and to prevent the pollution of air or water and the degradation of adjacent lands.”

50. Existing water capture and treatment systems at the Zortman and Landusky mine sites are unable to treat waters such that basic draft MPDES standards are met. At least two streams, King Creek and Swift Gulch, are contaminated but go entirely untreated due to funding shortfalls. Existing water capture and treatment systems also rely on the burial of highly contaminated sludge from the water treatment plants at the mine sites and on the Land

Application Disposal of severely contaminated waters on lands adjacent to the sites. These measures, in allowing surface and ground water contamination to continue and in causing the degradation of adjacent lands, violate MMRA Section 82-4-336 (10).

MPDES Permits

COUNT 5: The refusal of the DEQ to implement the draft MPDES permits at the sites violates Article IX, section 1, and Article II, section 3 of the Constitution of the State of Montana.

51. Paragraphs 1- 50, above, are realleged as though set forth in full hereunder.

52. Article IX, section 1 of the Constitution of the State of Montana provides in relevant part that, “The State and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. . . . The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation

16 and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.”

53. The DEQ is constitutionally obligated to maintain and improve a clean and healthful environment in Montana for present and future generations. In fulfilling this mandate, the DEQ is to implement and abide by legislative remedies for the protection of the environmental life support system. The Montana legislature has enacted the Montana Water

Quality Act to protect the environment and prevent the unreasonable depletion and degradation of water resources. In refusing to implement the draft MPDES permits as stated in the 2002

ROD and as required under the Montana Water Quality Act, the DEQ is in violation of Article

IX, section 1 of the Constitution of the State of Montana.

54. Article II, section 3 of the Constitution of the State of Montana provides that, “All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment . . . .”

55. In refusing to implement the draft MPDES permits for the abandoned sites, the

DEQ intends to create a regulatory void. The DEQ maintains that, without MPDES permits, no legally enforceable water quality standards exists for the surface and ground water emanating from the Zortman and Landusky mine sites. Pollution of these water resources is on-going and is getting worse in certain streams. The refusal of the DEQ to implement state environmental laws at the sites, with the intention of creating a regulatory void in which contamination of surface and ground waters goes unaddressed, violates Article II, section 3 of the Constitution of the state of Montana.

17 Long-Term Water Treatment

COUNT 7: The absence of a long-term water treatment plan at the Zortman and Landusky sites violates Article II, section 3 of the Constitution of the State of Montana.

56. Paragraphs 1 - 55, above, are realleged as though set forth in full hereunder.

57. Article II, section 3 of the Constitution of the State of Montana provides in relevant part that, “All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment . . . .” The DEQ is well-aware that action is needed immediately in order to prevent damage to the environment in the long-term and to uphold the inalienable right of Montana citizens to a clean and healthful environment. The DEQ, however, has promulgated no plan for the prevention of the significant environmental damage which will occur due to the cessation of all water treatment activities in 2028. The absence of any long-term water treatment plan violates the right of Montana citizens to a clean and healthful environment.

VI. Prayer for Relief

DEQ has a clear legal duty under the Montana Constitution and the MMRA, as set forth herein, to prevent the pollution of water resources and the degradation of lands in the Little

Rocky Mountains. Plaintiffs respectfully pray that this Court:

(1) Declare that leaving the Alder Gulch waste rock dump unreclaimed, in its present state, violates the Constitution of the State of Montana and the Metal Mine Reclamation Act;

(2) Declare that the DEQ is constitutionally mandated to improve and enforce the draft

MPDES permits such that all surface and ground water resources in the Little Rocky

Mountains, including Swift Gulch and King Creek, meet water quality standards under state

18 environmental law;

(3) Declare that the DEQ must promulgate a plan for post-2028 water treatment at the sites;

(4) Grant Plaintiffs their reasonable costs and attorneys’ fees; and

(5) Grant such other relief as this Court deems just and proper.

DATED this _____ day of October, 2004.

Respectfully submitted,

______Robert T. Coulter David K.W. Wilson Andrew I. Huff Reynolds, Motl and Sherwood Indian Law Resource Center 401 North Last Chance Gulch 602 N. Ewing St. Helena, MT 596501 Helena, MT 59601 (406)442-3261 (406)449-2006

______Thomas France 240 N. Higgins Missoula, MT 59802 (406)721-6705

ATTORNEYS FOR PLAINTIFFS

19