A Montana judge has ruled that the Montana Department of Natural Resources and Conservation failed to adequately consider the potential impact of the Rock Creek mine’s groundwater pumping on streams in the Cabinet Mountains Wilderness.
In an April 9 ruling, Montana District Court Judge Kathy Seeley reversed the department’s award of a water-use permit to RC Resources — a subsidiary of Hecla Mining — which is pursuing the Rock Creek silver-copper mine proposed near Noxon in Sanders County.
Seeley ruled the state agency must consider the potential depletion of “outstanding resource waters” that could occur due to the underground mine’s groundwater pumping before granting a water use permit.
John Grassy, a spokesman for the Department of Natural Resources and Conservation, said Monday the department will likely appeal.
Plaintiffs in the case included the Clark Fork Coalition, Rock Creek Alliance, Earthworks and the Montana Environmental Information Center.
A joint news release from the plaintiffs, who were represented by Earthjustice, celebrated Seeley’s ruling.
“The court’s decision is a victory for the Cabinet Mountains and the Clark Fork watershed,” said Karen Knudsen, executive director of the Clark Fork Coalition. “It’s also a victory for all Montanans, who share an equal interest in protecting and preserving our state’s outstanding waters.”
Luke Russell, vice president of external affairs for Hecla, said that Hecla is concerned the judge’s decision “greatly expands” what the Department of Natural Resources and Conservation must consider when weighing whether to award a water-use permit.
Russell said the mine’s next step, an exploration phase, could proceed without a water-use permit. That work would have no impact on surface water flows, he said.
Bruce Vincent, a Libby resident and president of Environomics — a consulting firm retained by Hecla — said that he felt the lawsuit is one step too early.
The exploration phase is when they will find out the facts about the hydrology at the site, he said. “All of the conclusions that have been brought forward to date, in the planning process, are based on models.”
Once they have gotten inside the site with the exploration phase, they will be able to plan based on facts, he said.
“First they have to go in and see what is really going on, because models are built on mountains of assumption,” Vincent said.
Having the project broken into phases was important for ensuring the environmental viability of the project, and something that Hecla and a community delegation to Washington D.C. fought for.
“We always supported breaking the projects into two phases so we could get that information, because that is important to everybody that lives here,” Vincent said.
For the people who live in the areas where Hecla proposes to mine — both the Rock Creek and Montanore mines — environmental sustainability is paramount, he said.
“We’re supportive of the potential jobs, but it’s gotta be done in a way that protects the environment, including the water,” he said.
Seeley’s ruling notes that the plaintiffs cited Montana law that holds the state’s “outstanding resource waters must be afforded the greatest protection feasible under state law, after thorough examination.”
The judge cited a Montana administrative rule that says all state surface waters located wholly within the boundaries of wilderness areas are outstanding resource waters.
Seeley noted that although the Department of Natural Resources and Conservation’s “responsibilities and authority regarding water-use permitting extend primarily to water quantity, water quantity and quality inherently overlap.”
She observed that water quality and water quantity are not solely the province of either the DNRC or the Department of Environmental Quality.
“Protecting stream flows in outstanding resource waters from significant dewatering is also a matter of water quantity,” Seeley wrote.
In August, the Kootenai National Forest issued a final record of decision for phase one — the exploration phase — of the Rock Creek project.
This story was re-written with additional information from an article by Duncan Adams at the Daily Inter Lake.