The Montana Supreme Court on Monday issued a decision that brings a central Montana copper mine one step closer to operation.
In a 5-2 decision, the justices wrote that the Montana Department of Environmental Quality made a “reasoned decision” when it issued a permit to Tintina Montana Incorporated (now Sandfire Resources America) to extract approximately 14 million tons of copper from a mine in Meagher County.
“Compiling an extensive record of scientific studies, expert examinations, engineering reports, testing, and comparison with other mining facilities around the world, and after considering a wide range of comments from members of the public, … DEQ made a scientifically driven permitting decision that was supported by substantial evidence,” Justice Beth Baker wrote in the ruling.
The justices ordered a lower court to reinstate a permit it had vacated for the Black Butte project located along a tributary of the Smith River, which the justices deemed “an undisputed Montana treasure.”
Montana Trout Unlimited, Montana Environmental Information Center, American Rivers and Earthworks had challenged DEQ’s decision to issue a permit, arguing that Montana regulators shouldn’t treat the Black Butte project as a “guinea pig” for a mining design that’s untested in the state and that the mining operations could impair water quality in Sheep Creek and the Smith River.
More specifically, they challenged DEQ’s finding that mine tailings — the material that’s left over after ore is removed — would remain secure with the use of a cement-aided technique that aims to make them more stable in the event of heavy precipitation or an earthquake. They also argued that Tintina’s water treatment plan would produce nitrogen four to six times the allowable standard, which could exacerbate the oxygen-depleting algal blooms that occasionally challenge the Smith, a lazy central Montana river that supports a trout fishery, agricultural irrigation and a highly sought-after recreational floating experience.
Baker and the concurring justices — Mike McGrath, James Shea, Jim Rice and Dirk Sandefur — devoted more than half of the 65-page majority opinion to technical aspects of the project and its anticipated water quality impacts in their assessment that the DEQ complied with the Montana law in its handling of Tintina’s proposal. The application, first submitted to DEQ in 2015, includes nearly 90,000 pages of documents, the concurring justices noted.
In the dissenting opinion, Justices Ingrid Gustafson and Laurie McKinnon countered that the DEQ generated an “inadequate analysis unsupported by the record” by failing to thoroughly examine the benefits of alternatives that would pose less of a risk to water quality.
“We would affirm the District Court’s determination that DEQ’s issuance of the mine permit was arbitrary, capricious, and unlawful, and remand to DEQ,” Gustafson and McKinnon wrote.
In an emailed statement, Sandfire Resources CEO Lincoln Greenidge thanked the court.
“Today’s victory in the Montana Supreme Court is a validation of the thoughtful and deliberate efforts of the Sandfire America team to design a world-class, environmentally safe mining project from the beginning,” Greenidge said. “Now, we look forward to progressing the project in a safe, responsible and sustainable manner.”
DEQ did not provide a comment to Montana Free Press Monday.
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The Montana Supreme Court takes up permitting for Black Butte copper project
The Montana Supreme Court has not heard a case that will have a “more direct and measurable impact” on the residents of Meaghers and Broadwater counties,” Meagher County Attorney Burt Hurwitz told justices at a hearing regarding the Black Butte copper mine permit issued by the Montana Department of Environmental Quality.
Environmental groups sue DEQ, Tintina over Black Butte mine
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.
Though the Supreme Court’s decision brings the Black Butte project one step closer to operation, it’s subject to another lawsuit that remains undecided.
In a separate filing, the same coalition of conservation groups has challenged a permitting component associated with water availability. More specifically, they’re arguing that diverting up to 250 million gallons of groundwater per year to support the mine’s operation does not constitute a “beneficial use” under the Montana Water Use Act, which is administered by the Montana Department of Natural Resources and Conservation.
In a statement following the ruling, Montana Trout Unlimited Executive Director David Brooks described the Montana Supreme Court’s ruling as “another sad example of Montana’s lenient mining and permitting laws allowing for the development of a large-scale, high-risk mine to be built without proper regard for the other values of a place, including its water quality, quantity, fishery, wildlife, recreational opportunities and cultural heritage.”
“Fortunately, our fight to protect the Smith is not over,” Brooks continued. “We will continue to pursue our coalition’s claims of illegal water use by the mine, as well as moving forward with our effort to protect the surrounding public lands from the perils of mining.”
The Montana Supreme Court will hear oral arguments in the lawsuit against the DNRC on March 29 in Missoula.
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