Montana Supreme Court upholds Tintina’s copper mine permit

A central Montana copper mine has cleared its second and final legal challenge before the Montana Supreme Court.

In a 5-2 opinion, the court Thursday upheld a permit the Montana Department of Natural Resources and Conservation issued to Tintina Montana Incorporated (now Sandfire Resources) to manipulate approximately 250 millions gallons of groundwater in pursuit of a 14 million-ton copper deposit in Meagher County.

Trout Unlimited and its Montana chapter challenged the DNRC’s permit alongside Montana Environmental Information Center, Earthworks and American Rivers. The environmental groups argued Tintina’s plan for managing water within an over-appropriated basin will diminish the quantity and quality of water in the Smith River, which justices have previously dubbed “an undisputed Montana treasure.”

At issue are 150 million gallons of “remainder water” that Tintina needs to remove to facilitate its mining operation but doesn’t have a particular use for, unlike the groundwater that will be explicitly put to industrial use at the mine.

Tintina intends to treat the “remainder water” at an on-site facility to remove the nitrogen that can be problematic for aquatic ecosystems. From there, it will inject the water into an underground filtration structure to gradually return the water to the aquifer. During the March hearing before the Supreme Court, Tintina argued water going through that process is neither used nor wasted, merely relocated. (Another approximately 100 million gallons of water the DNRC examined in the mine’s application will be put to “industrial use” at the mine.)

Had the court deemed the remainder water was being put to beneficial use, DNRC would subject Tintina to a more rigorous review that would likely involve the attainment of additional water rights — a difficult prospect given that the basin is already overallocated.

In its order, the five-justice majority noted a number of other instances where DNRC determined that there are “manipulations” of water that don’t fall neatly within the beneficial use or waste categories. Examples include diverting water contaminated with mine tailings to holding ponds and Deer Lodge’s irrigation of land with sewage water to dispose of the wastewater while protecting a nearby river’s water quality.

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The court also determined that the Montana Legislature plays an important role in this debate. Lawmakers have not “stepped in to modify DNRC’s categorization of mine dewatering as neither ‘waste’ nor use,’ despite specific opportunities to do so,” Justice Jim Rice wrote in the majority opinion, adding that “whether this regulatory system is ideal or preferable is a determination for the Legislature to make.”

The court also disagreed with the environmental groups’ claim that by issuing the permit, the DNRC has created a “loophole” that circumvents a constitutional requirement that Montana’s water is to be “comprehensively regulated and protected.” Justices argued that there are regulatory frameworks in place to protect those interests, but they’re examined by other agencies and are “beyond the DNRC’s authority.”

Chief Justice Mike McGrath concurred with the opinion, as did justices Beth Baker, James Shea and Dirk Sandefur. 

In an emailed statement highlighting the recreational and ecological value of the Smith River and its tributaries, the plaintiffs wrote that they were “keenly disappointed” by the ruling, which they described as setting “an extremely dangerous precedent.”

“Given the value of water to all people and uses, including fish, wildlife, family homes and agriculture, this ruling is incredibly disappointing,” Montana Trout Unlimited’s Executive Director David Brooks wrote. “Allowing mining companies a free pass on massive water use threatens the lives and livelihoods of all downstream water users, not to mention the health of the treasured Smith River.”

Scott Bosse, Northern Rockies Regional Director for American Rivers, wrote in the release: “This is a devastating ruling for everyone who cherishes the Smith River or any other river in Montana.” 

Nancy Schlepp with Sandfire Resources wrote in an email to Montana Free Press that her company appreciates the court’s “diligent review of the case,” which follows an earlier win before the Montana Supreme Court in a lawsuit involving a mining permit the Montana Department of Environmental Quality issued in 2020. 

“Following February’s Supreme Court ruling fully reinstating our permit, the entire Sandfire America team has remained focused on implementing a world-class, environmentally safe mining project, and today’s decision continues us down that path,” Schlepp wrote.

In a sharply worded dissent, Justices Laurie McKinnon and Ingrid Gustafson took issue with their colleagues’ establishment of a third category of water for mine dewatering. McKinnon wrote that leaving over half of the water the mine plans to withdraw “completely unexamined and unregulated” establishes a “gaping loophole” that will undermine the interests of senior water rights holders and “have huge impacts on Montana’s waters and future generations.”

McKinnon wrote that the water at issue should have been scrutinized under the beneficial use framework, particularly given that it’s subject to heavy manipulation. In addition to being collected and impounded, the water will be treated, transported and discharged. McKinnon also described Tintina’s plan to discharge water back into Sheep Creek through its infiltration system to offset any potential losses of water at nearby creeks as “nothing more than an unenforceable promise.”

Schlepp, with Sandfire, said the company initiated a drilling program after last year’s legal win to “better understand how to build the mine and the economics of the project.”

“The current drill program is planned to extend into mid-summer of 2025 and is expected to lead to expansion and increased definition” of the copper deposit, she added.