Montana Supreme Court: Stricter permit needed for Rock Creek Mine
Rob Chaney | Missoulian
October 30, 2012
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The Rock Creek Mine can’t use a general water discharge permit to build its access roads because those roads would threaten a population of bull trout in the Cabinet Mountains Wilderness, according to the Montana Supreme Court.
A four-justice majority ruled this week that Revett Silver Co. needs a more site-specific permit with greater public review before it starts a five-year effort to develop its copper and silver mine north of Noxon.
Writing for the majority, Justice Michael Wheat said the state Department of Environmental Quality erred in granting a general permit if the “point source will be located in an area of unique ecological or recreational significance,” according to Montana law.
The justices agreed with Montana Fish, Wildlife and Parks research showing that Rock Creek is an essential bit of bull trout habitat that cannot be replaced if damaged. And they supported a U.S. Forest Service conclusion that road construction over five years would fill the stream with sediment that could “result in permanent loss of the Rock Creek bull trout stock.”
Justices Mike McGrath, James Nelson and Brian Morris agreed with Wheat to uphold a state district court ruling rejecting the general permit. Justices Jim Rice and Patricia Cotter dissented.
Dissent author Rice argued that the court majority based its decision on “a very selective review of the evidentiary record and one that is contrary to the record as a whole.”
Rice said he thought DEQ properly decided the matter and the courts should have deferred to the agency.
He also argued that the area already suffers from a century-old network of logging roads that dumped 379 tons of sediment a year into Rock Creek. Revett’s improved road is expected to add 1,415 more tons to that load. But Rice noted the company’s road plan accounts for all of that discharge, plus improvements that would remove an additional 54.9 tons a year.
On Tuesday, Revett president John Shanahan said while he was pleased to convince some of the justices, the company planned not to appeal the decision.
“The reality is the Supreme Court has ruled,” Shanahan said. “We’re in the process of completing our (individual) permit, and that should be out in January or February of next year. It’s a different process. It involves a public comment period, but it won’t change the nature of the work we’ll be doing. We believe it will improve critical habitat, and won’t endanger the bull trout spawning areas.”
The Rock Creek Mine was proposed in the 1980s and took more than a decade of analysis before the state and U.S. Forest Service completed a joint environmental impact statement in 2001. In that time, several environmental and conservation groups challenged the project on grounds it would hurt threatened or endangered species like bull trout and grizzly bears.
Revett sought a general storm water discharge permit from the state in 2008 to upgrade about 12 miles of forest road, of which three miles ran next to Rock Creek. In July 2011, a district court judge ruled the general discharge permit wasn’t strict enough to protect the bull trout fishery.
“They issued the discharge permit knowing there would be significant impacts and knowing the significance of bull trout in Rock Creek,” said Bonnie Gestring of Earthworks, which joined the Clark Fork Coalition, Trout Unlimited and the Rock Creek Alliance in opposing Revett. “This decision will require they go back and obtain an individual permit and take steps to protect the fishery.”