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Several environmental groups filed a lawsuit Thursday over a proposed copper mine near White Sulphur Springs, arguing that the Montana Department of Environmental Quality did not go far enough to protect the iconic Smith River and that DEQ’s permit approval should be vacated.
DEQ called the hard rock mining permit issued in April for the Black Butte Copper project “the most protective” it has ever signed.
But the groups, including Montana Trout Unlimited, the Montana Environmental Information Center, Trout Unlimited, Earthworks and American Rivers, say the permit fails to protect water quality and water quantity in Sheep Creek, a tributary of the Smith.
“The ‘most protective’ doesn’t necessarily mean a lot,” said Ben Scrimshaw, an attorney with Earthjustice, which represents the conservation groups. “There are quite a few flaws in DEQ’s analysis.”
The lawsuit, filed against DEQ and Tintina Montana, the mine operator owned by Canadian company Sandfire Resources America, was filed in District Court in Meagher County.
Nancy Schlepp, vice president of communications and corporate secretary for Sandfire Resources America, which is largely owned by the Australian company Sandfire Resources, emailed a statement saying the company is “disappointed but not surprised” by the lawsuit.
“No major natural resource project in Montana goes unchallenged at some point. DEQ, under Governor Bullock, did an extremely thorough job of evaluating and reviewing the permit application during the past four and a half years, adopting changes to strengthen the permit, making it, in the words of the Montana DEQ, ‘the most protective’ permit the department has ever issued,” the statement said.
Rebecca Harbage, public policy director for DEQ, said Thursday that the state had not yet received the complaint and did not have a comment.
The Smith River is the only recreationally regulated river in Montana, with more than 10,000 people annually applying for about 1,000 permits to float the waterway, which flows into the Missouri River. The watershed generates more than $11 million annually, including more than $350,000 Montana Fish, Wildlife and Parks through fees.
The proposed Black Butte Copper Project is at least “two and a half years” from starting operations, the company told Montana Free Press in April. According to state documents, the 1,888-acre copper mine is expected to operate for 19 years and provide up to 250 jobs.
The lawsuit argues that DEQ violated the Metal Mine Reclamation Act, the Montana Constitution and the Montana Environmental Policy Act in ways that would impact both water quality and water quantity.
Much of the complaint has to do with a proposed 72-acre tailings facility, which the company said “raises the bar on environmental protections” and is designed to hold toxic waste generated by mining. The plaintiffs argue that the method to contain the wastes is “novel and untested,” suggesting it could fail. Therefore, the case says, DEQ should evaluate what would happen if the facility failed to contain the waste and polluted the watershed, the lawsuit argues.
The lawsuit also argues that the mine could increase nitrogen levels in Sheep Creek, leading to an increase in algal blooms, and that DEQ did not perform any analysis about that issue.
The project is estimated to withdraw about 800 acre-feet of groundwater annually, which could lower the water table by 100 to 200 feet during peak withdrawals, and would also cause drawdown and a loss of surface water flow in Sheep Creek and its tributaries.
Already, Sheep Creek fails to maintain in-stream flow levels reserved by FWP in order to maintain habitat for trout and other aquatic species, Scrimshaw said. About 50% of the Smith’s rainbow trout that come from tributaries come from Sheep Creek.
The lawsuit also argues DEQ should have meaningfully evaluated feasible alternatives to the proposal, which the plaintiffs introduced in public comments. The mine proposal received more than 12,000 public comments, more than 95% of which were negative. Such alternatives include increasing the stability of the tailings facility and removing certain pollutants from the tailings facility.
Scott Bosse, northern Rockies director for American Rivers, said many experts retained by the coalition of conservation groups told him, “If this mine is built, it will eventually contaminate the Smith River. It’s not a matter of if, it’s a matter of when.”
Because of that prospect, Bosse, said, the state should take every possible precaution to protect the river.
“If there were such a thing as the most sacred river in Montana, it would be the Smith,” Bosse said.