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Montana Supreme Court Blocks Construction of Rock Creek Mine

The Montana Supreme Court voided a key water quality permit for the proposed Rock Creek Mine this month, holding that the state’s use of a permitting shortcut would not sufficiently protect Rock Creek’s threatened bull trout population, a resource of “unique ecological significance” under state law. The Rock Creek Mine is a controversial mining project that would excavate for silver and copper underneath the Cabinet Mountains Wilderness in the lower Clark Fork River drainage near Idaho.

The Supreme Court upheld a decision issued by a Montana district court in July 2011, finding that the Montana Department of Environmental Quality violated Montana’s water quality laws when it issued a general construction permit that would allow the mining company to degrade Rock Creek, instead of preparing an individual permit specifically designed to protect Rock Creek’s uniquely sensitive resources.

We're gratified that the Montana Supreme Court upheld the district court decision, as we feel it validates our contention that Rock Creek's one-of-a-kind ecological resources are too important to dismiss. Read more.

Missoulian 10/31/12: "Montana Supreme Court: Stricter permit needed for Rock Creek Mine"

KPAX News 10/31/12: "MT Supreme Court upholds ruling for stricter permits at mine in Cabinets"

Bonner County Daily Bee: "Court voids Rock Creek mine permit"


FOR IMMEDIATE RELEASE:  October 30, 2012

Download release as PDF

For more information, please contact:
Karen Knudsen, Clark Fork Coalition, 406/542-0539 or 406/529-7836 (mobile)
Jim Costello, Rock Creek Alliance, 406-544-1494
Bonnie Gestring, Earthworks, 406-549-7361

Montana Supreme Court Blocks Construction of Rock Creek Mine

The Montana Supreme Court voided a key water quality permit for the proposed Rock Creek Mine on Monday, holding that the state’s use of a permitting shortcut would not sufficiently protect Rock Creek’s threatened bull trout population, a resource of “unique ecological significance” under state law.  The Rock Creek Mine is a controversial mining project that would excavate for silver and copper underneath the Cabinet Mountains Wilderness in the lower Clark Fork River drainage near Idaho.

The Supreme Court upheld a decision issued by a Montana district court in July 2011, finding that the Montana Department of Environmental Quality violated Montana’s water quality laws when it issued a general construction permit that would allow the mining company to degrade Rock Creek, instead of preparing an individual permit specifically designed to protect Rock Creek’s uniquely sensitive resources.

The Supreme Court agreed, citing the final Environmental Impact Statement (EIS), which described Rock Creek’s bull trout population as “an essential stock for conservation purposes,” and the stronger of the “only two stocks in the Lower Clark Fork considered to have enough individuals to avoid significant risk of extinction.”

Construction of the mine would discharge massive amounts of sediment to Rock Creek, increasing sediment loading by 38% overall.  Fine sediment smothers bull trout eggs, dramatically decreasing survival.  The discharge, slated to occur for five to seven years, would encompass the full seven-year life span of a bull trout.

“The mine’s impacts to Rock Creek and its bull trout population would be devastating,” said Jim Costello of the Rock Creek Alliance.  “The state knew this, but chose to treat this discharge as insignificant by issuing a general construction permit that ignores the importance of Rock Creek.

“The Rock Creek bull trout population is critical to the recovery of the species in the Clark Fork Watershed,” said Bonnie Gestring of Earthworks. “This decision prevents the company from cutting corners to avoid protecting Montana’s native trout.”

The court agreed with the four plaintiff organizations, which include the Rock Creek Alliance, Earthworks, Clark Fork Coalition and Trout Unlimited, and issued a summary judgment voiding the permit.  The court’s action precludes any construction activities until the state prepares a detailed, site-specific permit for the mine in accordance with state law, and with full public review. Karen Knudsen, executive director for the Clark Fork Coalition was gratified that the Supreme Court upheld the decision. “The court validated our contention all along that Rock Creek is too important to dismiss.”

The proposed mine is widely opposed by a diverse group of businesses, local governments, and conservation and sporting organizations in the region concerned about the long-term pollution the mine would generate.

History
The Threat

In the News
Resource Library


History

In late June of 2003, regulators granted permits for a giant silver and copper mine that would sit above the Clark Fork River near Noxon, Montana, just upstream of Idaho’s Lake Pend Oreille. The proposal is immense, indicating it will take five years to develop the mine before actual construction begins.  The mine will burrow a length of three miles under the Cabinet Mountains Wilderness in the cedar-hemlock Rock Creek drainage, 900 feet below its snowy ridges and alpine lakes, and well under the area’s water table. Proposed by Revett Silver—a newly-formed subsidiary of Revett Minerals based in Spokane, Washington—the so-called “Rock Creek Project” will blast out and chemically process 100 million tons of ore alongside trout-filled Rock Creek. In the process of extracting 115 million ounces of silver and 935 million pounds of copper over its 30-year lifetime, the mine will dump 3 million gallons of wastewater into the Clark Fork River every single day. And it will generate a 100-million-ton mix of leftover crushed ore, processing chemicals, and waste, which Revett plans to stack in a 324-acre tailings impoundment near the river. What this proposal adds up to is one of the largest underground mines in North America, and the first mine to be permitted beneath a wilderness area.

Despite the late-June 2003 approval of Revett’s Rock Creek project, there are still lots of big and unanswered questions about how such a mine could be allowed to operate in the Clark Fork watershed. Forest Service officials maintain that mining-related laws prevent the agency from denying Revett a permit to go forward with this mine.

We don’t see it that way. By the looks of the project plan and its environmental impact statement, the decision to give the mine the go-ahead does not comply with the many requirements of the National Environmental Policy Act, the National Forest Management Act, the Federal Land Policy and Management Act, the 1872 Mining Law, the Forest Service Organic Act of 1897, the Wilderness Act, the Endangered Species Act, the Clean Water Act, the Clean Air Act, not to mention several other mining and land use implementing regulations. And that is why the Clark Fork Coalition and other conservation groups jumped into what has quickly morphed into a legal battle to decide the fate of the mine and the future of the lower Clark Fork watershed.  We are working with our partner groups, including Trout Unlimited, the Rock Creek Alliance, and Earthworks, to oppose Revett's attempts to develop a mine in this highly sensitive wilderness area.

In Aug. of 2003, we filed an administrative appeal, asking the Forest Service to take a good hard look at the environmental soundness of the proposed mine and the agency’s flawed environmental analysis, so that we wouldn’t have to turn to the federal courts to do so. The agency rejected our appeal.  In June 2008, we were one of four conservation groups to file federal suit to block activity at the proposed Rock Creek Mine.

We continue also to carry on with a state lawsuit we and other conservation groups filed against Montana’s Dept. of Environmental Quality. As lead plaintiff, we filed the suit in the winter of 2002 after DEQ violated its own reclamation and water quality laws when it issued the necessary state permits for the mine without conducting a ”non-degradation review” to see how project-area waterways would be affected.  In December 2008, a Montana Supreme Court ruling voided a state water discharge permit for Rock Creek, delaying the proposed copper and silver mine that would tunnel beneath the Cabinet Mountains Wilderness.  The ruling came as a result of a lawsuit filed against DEQ by the Clark Fork Coalition, Trout Unlimited, the Rock Creek Alliance, Cabinet Resource Group and Montana Environmental Information Center.

In the federal case, in May of 2010, Federal Judge Molloy rejected the U.S. Forest Service's approval of the Rock Creek Mine, and sent the mine's Environmental Impact Statement (EIS) back to the agency for revision.  Judge Donald Molloy ruled that the Forest Service violated the National Environmental Policy Act and the Forest Service Organic Act in approving the Rock Creek Mine planned by Revett Minerals Inc.  Read Molloy's 124-page decision

The state case continues.  In January 2011, a state district judge took oral argument in our case against DEQ, challenging the two "general stormwater permits" that the agency issued to Revett Minerals in 2008 and 2009.  Our argument focuses on the large amount of sediment that mine and road construction activities could discharge to Rock Creek, which would harm a small but crucial population of bull trout that resides there.  Montana water quality law prohibits anyone from discharging sediment into state waters at levels that will harm fisheries.  Our attorney presented a well-reasoned argument that DEQ must require Revett to apply for individual permits for these sediment-generating activities since the evidence shows water quality standards will be violated due to the harm that will befall Rock Creek's bull trout population.  The individual permit process will allow CFC and others to provide input on mitigation measures proposed by Revett, that, so far, have undergone no public scrunity.

In October 2012, the Montana Supreme Court upheld a decision issued by a Montana district court the past July 2011, finding that the Montana Department of Environmental Quality violated Montana’s water quality laws when it issued a general construction permit that would allow the mining company to degrade Rock Creek, instead of preparing an individual permit specifically designed to protect Rock Creek’s uniquely sensitive resources.  It's a big win for trout and river health in Rock Creek, and allows the Coalition and its partners an opportunity to weigh in on the individual permit process for the mine.

And, on the federal level: We are still awaiting the release of a revised or amended EIS from the Forest Service.


The Threat

Following 16 years of analysis, officials with the Forest Service and Montana’s Dept. of Environmental Quality decided the Rock Creek mine can be done right—or at least that “it meets all applicable laws and regulations.” We’re not convinced-- not at all.

Although a sizable reclamation bond—up to $77 million—is required of Revett Silver, the potential for lasting environmental damage is huge. Perhaps the biggest danger is the possibility that the mine will drain a string of lakes in the Cabinet Mountains Wilderness and seriously affect the macroinvertebrates, which are critical to the wilderness food chain and which rely on groundwater for the trace minerals they need to survive. Ore removal could also cause soils above the mine tunnels to collapse—known as subsidence—as it has at other underground metal mines. While some subsidence is considered tolerable at certain mines, here it would occur in a protected wilderness area. And after the mine closes and begins to re-fill with water, it will begin leaking poisonous metal-rich waste into area waters—either from an adit above Rock Creek, or, if the adit is plugged, from seeps and springs within the wilderness. Between all the sediment-loading, the metals-leaching, and the groundwater-lowering, Rock Creek’s native bull trout population will be severely damaged. The daily dumping of metals-laced wastewater into the Clark Fork will also degrade the lower stretch of river, and, ultimately, Idaho’s Lake Pend Oreille.

From a clean water perspective, this mining project has far too much room for error. Some think it’s amazing that the Forest Service and Montana’s Department of Environmental Quality even entertained—let alone permitted—the proposal. Eight of twelve major mines in Montana developed severe water quality problems, which permitting agencies never expected. There’s no reason to think the Rock Creek mine—given its interplay with wilderness lakes, groundwater, Rock Creek, and the Clark Fork—will evolve any differently.


Resource Library

To supplement your learning about the proposed Rock Creek Mine, see the following resources:

Revett Mineral’s company website
Kootenai National Forest Rock Creek Project web site
Montana Dept. of Environmental Quality’s Rock Creek Project web site