The Montana Supreme Court on Friday heard oral arguments regarding a central Montana copper mine’s anticipated effect on regional water supplies.
The lawsuit stems from a dispute about a mine that Tintina (now Sandfire Resources) seeks to develop along a tributary of central Montana’s Smith River. State environmental regulators cleared the Black Butte Mine to proceed in 2020, but a coalition of environmental groups challenged the project in court, arguing that it poses a threat to water quality and water supply.
This is the second time in as many years that the state’s highest court has heard arguments related to Black Butte. The Montana Supreme Court in February sided with Tintina and the Montana Department of Environmental Quality in a 5-2 ruling that reinstated the hard rock mining permit DEQ issued to Tintina in 2020.
The case heard this week was brought by the same plaintiffs — Montana Trout Unlimited, Montana Environmental Information Center, American Rivers and Earthworks — but involved a different state agency, the Montana Department of Natural Resources and Conservation.
The environmental groups argued in this week’s hearing that DNRC has failed to demonstrate that the mine’s groundwater management proposal will uphold protections afforded to existing water rights holders under the Montana Water Use Act.
More specifically, they argue that the DNRC should require a permit for the diversion of groundwater required to facilitate the excavation of copper from the Black Butte Mine because they say it’s a type of “beneficial use” as contemplated by the Montana Water Use Act the Legislature passed in 1973.
Mining operations would intersect with groundwater in two ways. Tintina plans to use approximately 350-acre feet of groundwater annually to process the material it pulls out of mine and assist with other mine operations. It has secured a water right for water that will be put to “industrial use” at the mine. Additionally, it plans to pump groundwater out of the project area to dewater the mine, or prevent mining tunnels from filling with water. The latter groundwater will be stored during some of the year to mitigate the leaching of selenium and ultimately released through an underground infiltration system.
“Tintina has suggested, and the state has also indulged this notion, that Tintina doesn’t want this unpermitted diversion at all, that it would be better off if the water wasn’t there. This suggests that Tintina does not want to be pumping and impounding water at all,” Sean Helle, an attorney representing the environmental groups, argued during the hearing held at the University of Montana. “The problem with this argument is that Tintina does in fact intend and desire to pump every gallon of water it will have to pump at the Black Butte Mine because that pumping is essential to its mining operation.”
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Tintina has countered that it shouldn’t be required to go through a permitting process for the diverted water — a rigorous, time-intensive and uncertain process —because it isn’t proposing the type of use contemplated by the act. Arguing for Tintina, attorney John Tietz suggested that the groundwater diversion is more akin to relocating water than consuming or using it.
“There is no ‘use’ here,” Tietz said. “If I take my cell phone out of my pocket and I put it in the other pocket, I can’t be saying that I ‘used’ it.”
Justice Laurie McKinnon pushed back on that argument, pointing out that the Colorado Supreme Court found that extracting and storing water to facilitate the recovery of coalbed methane gas does constitute a beneficial use of water because its extraction and storage is used to “accomplish” a particular purpose.
In addition to debating the application of “beneficial use,” Tietz argued that the plaintiffs have failed to demonstrate they have standing to bring the lawsuit if the mine proceeds because they don’t own water rights that could be diminished by mine operations.
DNRC attorney Brian Bramlett argued that the agency should be given deference to its interpretation of Montana law. He also argued the Montana Water Use Act’s applicability is limited since the mine isn’t seeking a water right for the groundwater diversion and draining and disposing of water doesn’t meet the requirements of a beneficial use under existing statute and court rulings.
Tintina said after a ruling was issued in the first legal challenge last month that it had secured what it needs to begin the mining operation — namely a hard rock mining permit issued by DEQ and a DNRC permit for the groundwater it intends to use to process the ore it excavates from the mine.
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