Supreme Court rules permit for Rock Creek Mine is valid

In a recent ruling, the Montana Supreme Court determined the Department of Natural Resources and Conservation jumped through its proper review hoops prior to granting a mining company a water permit for the proposed Rock Creek Mine Project situated near Noxon in Sanders County.

The site of the proposed copper and silver mine is located beneath the Cabinet Mountains Wilderness — an area brimming with natural resources that conservation groups have maintained are at great risk of being impacted should mining operations move forward. The mountains are also sacred to the Ktunaxa people and are home to one of the last grizzly bear populations in the lower 48 states.

Rock Creek Alliance, Clark Fork Coalition, Earthworks and the Montana Environmental Information Center sued the state in 2018 shortly after the DNRC granted a water permit to the mine’s owner, Idaho-based Hecla Mining Company. According to court documents, the permit annually appropriates up to 857 acre-feet of groundwater to flow into underground mining tunnels and works associated with Phase 2 of the Rock Creek Project. If granted, the permit could be valid for more than 30 years.

The groups, represented by Earthjustice, argued operations would “dewater” streams and harm native fish species such as bull trout. And in 2019, Lewis and Clark County District Court Judge Kathy Seely ruled in favor of the organizations after determining the state did not fully consider the possible environmental damages the water permit could bring.

However, the high court’s 5-2 ruling on Wednesday reversed that lower court decision.

In brief, the justices decided that although water resources within the federally designated Cabinet Mountain Wilderness Area are statutorily protected against dewatering under federal and state law, that responsibility doesn’t fall solely to DNRC.

For example, the agency is responsible for administering the Montana Water Use Act, which governs who, how much and for what purposes individuals and entities may use water. But it is the Montana Department of Environmental Quality that is tasked with administering a separate provision known as the Montana Water Quality Act, which is used to govern water quality issues in the state, including those related to mining. And because Department of Environmental Quality officials did not take issue with the 2018 permit, the Supreme Court determined additional review is not necessary at this time.

“It was undisputed that the issuance of the DNRC’s water permit for the Rock Creek Mine project would deplete one or more specifically identified and protected outstanding water resources,” the synopsis states. However, it continues, “the Montana Legislature has mandated that both the DNRC and the [Montana Department of Environmental Quality] have the responsibility to enforce these protections.”

That determination was one of several made by the majority of the Supreme Court justices, two of whom dissented.

JOHN GRASSY, a spokesperson for the DNRC, said the ruling confirms the agency’s analysis of water rights does not interfere with Montana Water Quality Act protections implemented by the Department of Environmental Quality.

“This opinion is an important decision for water users who have come to rely upon the Department’s decades-long interpretation and application of the Water Use Act in a manner that balances development of new water rights while protecting senior water rights from encroachment,” Grassy said.

Hecla Mining Company Vice President of External Affairs Luke Russell echoed that statement, saying the company and its Montana subsidiary, RC Resources, were pleased with the court’s decision.

“We think they [the justices] got it right in ruling that the state went through the appropriate permitting processes,” Russell said. “We are viewing this as a very positive decision and we are now focusing our energy on moving forward.”

Earthjustice Attorney Katherine O’Brien, however, said the conservation groups involved in the case aren’t quite ready to throw in the towel.

“We are disappointed by the court’s ruling, but undeterred in our efforts to fight RC Resources and Hecla’s destructive proposal to mine beneath the Cabinet Mountains Wilderness. Those efforts will not end with this decision,” O’Brien said. “Unfortunately, yesterday’s ruling concerned just one of the many serious threats the Rock Creek Mine poses to Montana’s outstanding resource waters, bull trout and other native fish, imperiled grizzly bears, and lands sacred to the Ktunaxa Nation.”

Moving forward, Hecla has more hurdles to clear before it gets the final OK for the Rock Creek Mine Project, which is projected to produce up to 10,000 tons of ore daily when operations are in full swing and employ an estimated 300 workers.

For example, there is a separate lawsuit pending in federal court that challenges the mine’s approval under the Endangered Species Act. The litigation essentially states that the U.S. Fish and Wildlife Service and U.S. Forest Service failed to comply with the act when they approved the project, which is likely to harm grizzly bears and other endangered species.

Hecla has been steeped in legal conflicts since the company acquired Rock Creek in 2015, though lawsuits and complaints involving the project date back decades.