Big Win for Rock Creek and Native Trout

Rock Creek-- and the bull trout that live in this lower Clark Fork tributary-- won big this summer, with a state district court decision to void a construction permit for the Rock Creek copper/silver mine.  The Clark Fork Coalition and our co-plaintiffs (Rock Creek Alliance, Earthworks, Trout Unlimited) challenged this permit, because it glossed over the huge increase in sediment loads the mine will bring to Rock Creek, not to mention the impacts on a small but critical population of bull trout.  It's an important victory, and we're pleased the court recognized Rock Creek's unique ecological significance and its value to Montana's native trout.  Read the Missoulian's coverage of the story. Read the full decision.

FOR IMMEDIATE RELEASE:  July 22, 2011

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

Montana State Court Blocks Construction of Rock Creek Mine

On Thursday, a Montana state court blocked construction of Revett Mineral’s proposed Rock Creek Mine beneath the Cabinet Mountains Wilderness in northwestern Montana, ruling that the state improperly relied on a permitting shortcut under the Montana Water Quality Act. 

The ruling was the latest in a series of legal setbacks for the controversial copper and silver mine.  The courts have repeatedly found the mine plan to be in violation of state and federal laws that protect clean water, fish and wildlife, and public health, resulting in the loss of several key state and federal permits.

Thursday’s decision by Helena district court judge Kathy Seeley focused on the large amounts of sediment that mine construction would release into Rock Creek, a key spawning tributary for bull trout in the lower Clark Fork River. Permitting studies for the mine showed that construction would cause a 38% increase in sediment pollution to Rock Creek, where existing sediment levels are already so high that any increase would impair bull trout spawning.  Judge Seeley held that under these conditions, the state was wrong to permit the mine under the generic “general permit” that covers ordinary construction activities across the state and excludes public comment, and instead must prepare an ordinary water quality permit based on the specific conditions at the mine site, and allow for public review.

“This decision is just common sense,” said Karen Knudsen, executive director of the Clark Fork Coalition, which brought the suit along with the Rock Creek Alliance, the Clark Fork Coalition, Earthworks, and Trout Unlimited.  “To approve a huge copper and silver mine in sensitive bull trout habitat under the same abbreviated permit process that applies when you build a house next to the interstate makes no sense at all.  Yet that’s what the state tried to do here.”

Jim Costello, outreach director for the Rock Creek Alliance, was gratified that the court stated that it would not defer to an agency decision that it finds incorrect.  “The court validated our contention all along that Rock Creek is too important to dismiss.  Too often, agency decisions that are clearly wrong are left standing because the assumption is made incorrectly that agencies know what’s best and will do the right thing to protect public resources.”

Biologists for the Montana Department of Fish, Wildlife and Parks have identified Rock Creek as a crucial tributary for the recovery of bull trout in the lower Clark Fork River. These concerns were the basis for Judge Seeley’s determination that Rock Creek is an area of “unique ecological significance” under Montana law.

“We’re heartened by the court’s decision to recognize Rock Creek’s importance as a bull trout stronghold, and require that the public have a voice in the permitting process, when such an important resource is at risk,” said Bonnie Gestring of Earthworks.

As a result of Thursday’s ruling, Revett will not be able to build the mine until it obtains an individual discharge permit under the Montana Water Quality Act, with a full opportunity for public review and input.  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

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 2011.  In January, 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.

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