Judge nixes permit for Rock Creek mine project

A state judge sided with plaintiffs and ruled the Montana Department of Natural Resources and Conservation failed to adequately consider the potential impact of a mine’s groundwater pumping on pristine 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, which is pursuing the underground Rock Creek silver-copper mine proposed near Noxon in Sanders County.

RC Resources is a subsidiary of Hecla Mining, headquartered in Coeur d’Alene, Idaho.

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 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.”

Bonnie Gestring, northwest program director for Earthworks, reacted similarly.

“The decision is great news for our wilderness rivers and streams and the critical habitat they provide for fish and wildlife,” Gestring said. “After all, it isn’t enough that the water in these streams is clean if there isn’t enough of it.”

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.

Jim Jensen, executive director of the Montana Environmental Information Center, described Seeley’s decision as a “landmark ruling that erases the false narrative that water quality and water quantity are separate under Montana water law.”

In turn, Luke Russell, vice president of external affairs for Hecla Mining, said 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, which he described as an exploration phase, could proceed without a water-use permit. That work would have no impact on surface water flows, he said.

In August, the Kootenai National Forest issued a final record of decision for phase one of the Rock Creek project, with phase one being an “evaluation adit.” An adit is a horizontal passageway into a mine.

Meanwhile, the Rock Creek project faces other challenges.

The Department of Environmental Quality has cited the state’s “bad actor” law in reference to the former relationship of Hecla’s President and CEO Phillips Baker with Pegasus Mining.

Pegasus promised environmentally responsible mining at places such as Beal Mountain Mine near Anaconda and then Pegasus went belly up, saddling taxpayers with millions of dollars in cleanup costs.

Montana regulators have said Hecla or Baker must reimburse the state for those costs before proceeding with new mines.

The Forest Service’s overview of the Cabinet Mountains Wilderness includes this description: “Clean and pure are the simplest and most accurate ways to describe the water that comes out of the wilderness. Past studies have rated this water among the top 5 percent purest water in the lower 48 states.”

Reporter Duncan Adams may be reached at dadams@dailyinterlake.com or 758-4407.