State court upends future for Montana silver, copper sites   

Dylan Brown, E&E News reporter

Published: Tuesday, April 16, 2019


A state judge has revoked a key permit for one of two major silver and copper mines bordering a northwestern Montana wilderness.

Montana 1st Judicial District Court Judge Kathy Seeley reversed the approval of a water-use permit last week for the Rock Creek mine near Libby, Mont., sending it back to the Montana Department of Natural Resources and Conservation (MDNRC) for additional environmental analysis.

The ruling is the speed bump in Hecla Mining Co.'s plans to mine outside the Cabinet Mountains Wilderness. Meanwhile, Montana regulators already proposed banning the Idaho-based company from the state until its CEO repays taxpayers for cleaning up mines abandoned by his former company.

Rock Creek is one of a number of long-running proposals for new development in the historic mining region spanning the Idaho-Montana border.

In 2016, MDNRC determined enough water was available for Hecla subsidiary RC Resources Inc. to conduct groundwater pumping at the 481-acre proposed site in the Kootenai National Forest.

Environmental groups challenged the conclusion, arguing it failed to consider that mine shafts extending underneath the adjacent Cabinet Mountains Wilderness could dewater streams in the protected area (Greenwire, Sept. 20, 2016).

But in January 2018, an agency hearing examiner upheld MDNRC's decision to only gauge potential impacts to existing water rights. The department analyzed water quantity, deferring to Montana Department of Environmental Quality on matters of water quality.

So Earthjustice, an environmental law firm representing the Clark Fork Coalition, the Rock Creek Alliance, Earthworks and the Montana Environmental Information Center, took their case to Judge Seeley in Lewis and Clark County.

Seeley ruled MDNRC has a duty to protect streams and rivers of particular environmental, ecological and economic value, and state law classifies all surface waters in wilderness areas as those "outstanding resource waters."

Hecla's own modeling shows groundwater pumping could completely drain at least one wilderness stream.

"Water quality and water quantity are not solely in the province of either agency," Seeley wrote. "Protecting stream flows in Outstanding Resource Waters from significant dewatering, is also a matter of water quantity."

MDNRC must now analyze water depletion before making another permit decision.

"The state court's decision affirms the need to protect wilderness waters from an industrial use that would permanently diminish and degrade them," Rock Creek Alliance Executive Director Mary Costello said in a statement.

Other litigation

The case is just one in a slew against Hecla.

Environmental groups have sued the Forest Service for approving the first phase of development at Rock Creek (Greenwire, Aug. 29, 2018). The Kootenai National Forest has only approved a test mine tunnel and exploration, but the lawsuit outlines persistent Endangered Species Act concerns. The final supplemental environmental impact statement was only conducted after environmentalists sued to protect threatened species like bull trout and grizzly bears.

The same groups are also back in state court fighting Hecla's other Montana project. Seeley will also decide on that challenge to a National Pollutant Discharge Elimination System permit for the Montanore mine, which would also tunnel beneath the Cabinet Wilderness.

All those cases could be moot, however, depending on a decision before another 1st Judicial District Court judge.

Hecla has sued Montana DEQ for labeling CEO Phillips Baker Jr. as a "bad actor" (Greenwire, Dec. 11, 2018). State mining law bars individuals and companies that do not clean up mines from starting new ones.

Baker was former chief financial officer at Pegasus Mining, which went bankrupt in 1998 and saddled the state with more than $35 million in pollution cleanup costs at three southeastern Montana mines.

Hecla contends the state agency has misinterpreted the statute.

Judge Mike Menahan heard oral arguments in the case earlier this month but has yet to make a decision.

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