A proposed silver/copper mine near Libby can’t rely on a 30-year-old water quality permit granted to a bankrupt company, according to a Montana Supreme Court decision released on Tuesday.
The Montanore project on the border of the Cabinet Mountains Wilderness must seek new permission from the state Department of Environmental Quality if it wants to keep pursuing the mineral deposit, a four-member majority led by Justice Ingrid Gustafson ruled. Justice Jim Rice dissented, arguing he thought the permit question wasn’t discussed enough to warrant overturning 14 years of current work on the mine and its permits.
But Gustafson ruled that Montana’s constitutional right to a clean and healthful environment required the court to take a hard look at the permit and its history.
“DEQ’s use of an expired 1992 (Bureau of Health and Environmental Science) order to sidestep Montana’s enhanced non-degradation policy … was unlawful and rightly rejected by the district court because ‘Montana courts do not defer to incorrect or unlawful agency decisions,’” Gustafson wrote. Mine owners Hecla Mining Co. and its subsidiary Montanore Minerals Corp. will have to seek a new review and permit application if they wish to pursue the project, the majority ruled.
“We were really surprised DEQ continued to push this 30-year-old permit through,” said Bonnie Gestring, of Earthworks, a conservation organization that challenged the Montanore mine permit. “It was issued to a company after the previous company had abandoned the mine and moved on. The court issued a clear directive to the agency that it violated the Montana Water Quality Act with this pollution permit.”
A company called Noranda Minerals started the Montanore mine in 1989 and got a water pollution permit from the state in 1992. However, it stopped working on the project in 1991, citing rising pollution levels and falling metal prices. Then in 1993, a state court found Noranda had violated the Montana Clean Water Act, fined it and ordered it to seek new permits.
Noranda got a new permit in 1997 and applied for a renewal in 2001. But in 2002, the company decided to abandon the project and tried to relinquish its water discharge permits. DEQ instead ordered the permits to remain active while Noranda cleaned up its site. Its other mining permits also expired or were terminated in 2002.
Two years later, Mines Management Inc. submitted proposals for resuming the project and got a renewed DEQ water discharge permit in 2006. It got another renewal in 2017 for an enlarged discharge operation, and several environmental groups challenged the plan in court. A Montana District Court judge agreed in 2019, vacating the new pollution permits.
The Supreme Court justices acknowledged that Montana’s water quality rules were different in 1992, when the original pollution permits were issued. At the time, mine waste was allowed to damage water quality “as a result of necessary economic or social development.” But in 1993, the Legislature changed the law and required tougher standards.
That left the question whether the mine ever stopped operation between its existence as Noranda in 1992 and its takeover by MMI in 2006. The justices ruled that the first company had ceased to function and abandoned its permits in 2002, so there was no legal way for its old permits to be passed to the new owners. Although the 1992 permit stated it would remain in effect “for so long thereafter as necessary” after the operational life the mine, the justices wrote “It would be absurd to interpret the BHES order’s ‘as necessary’ language to include Noranda’s abandonment of the project and nearly complete reclamation work to extend MMI’s proposed new mine project.”
"I’m disappointed with the ruling,” Hecla Vice President Luke Russell said on Wednesday. “We think Justice Rice in his dissent got it right. The permit was not challenged when the renewal was made in 2006, 14 years ago. Reclamation is part of a mining plan of operations. That was still going on and economic conditions changed. It’s not uncommon for mining to continue."
The Montanore mine and nearby Rock Creek Mine have both tangled with environmental and conservation opponents in court over their potential impact on the Cabinet Mountains Wilderness. The area has threatened bull trout and grizzly bear habitat.
Russell said Hecla would continue to pursue new permits with DEQ for Montanore.
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