SANDPOINT — The Montana Supreme Court is requiring a more rigorous permitting process for improving a road leading to the proposed site of the Rock Creek Mine.
The state’s high court ruled 4-2 on Monday to uphold a district court’s ruling that voided a construction permit for the road work.
The Sandpoint-based Rock Creek Alliance, along with the Clark Fork Coalition, Earthworks and Trout Unlimited, sued the Montana Department of Environmental Quality over the permit’s issuance and mine developer Revett Minerals intervened.
The environmental and conservation groups argued that the permit to approve stormwater runoff violated Montana water quality laws because Rock Creek is of unique ecological significance as it relates to threatened bull trout.
The project’s final environmental impact statement identifies the creek’s population as an “essential stock for conservation purposes” and the stronger of only two stocks in the Lower Clark Fork River considered to be robust enough to stave off risk of extinction.
Fine sediment already impairs the creek and clogs the spaces between the gravel and cobble needed by incubating bull trout eggs and fry.
First District Judge Kathy Seeley ruled in favor of the plaintiffs and Revett appealed.
But a majority of the higher court upheld Seeley’s ruling.
“The risk of extirpation of a unique population of already at-risk bull trout further justifies the finding that Rock Creek is an area of unique ecological significance,” Justice Mike Wheat wrote in the 23-page opinion.
Justices Mike McGrath, James Nelson and Brian Morris concurred, but Justices Jim Rice and Patricia Cotter dissented.
Rice contended the road improvements would ultimately curb the amount of sediment making its way into the creek and said fellow justices placed too much reliance on a limited aspect of the record and ignored a vast amount of evidence available to DEQ.
“It is not the duty of this Court to second guess the agency about the record or to substitute its judgment for the agency,” wrote Rice.
Revett CEO John Shanahan was unfazed by the supreme court’s decision. He said Revett is already working with DEQ on a Montana Pollution Discharge Elimination System permit, a more stringent process than the construction permit.
“The reality is we are well under way in the MPDES permit anyway,” said Shanahan. “We had already gone down that route anyhow, so it doesn’t really change things for us.”
Jim Costello of the Rock Creek Alliance called the supreme court’s ruling a “huge win” that underscores the importance of Rock Creek’s bull trout population.
Costello said the ruling stood in stark contrast to a U.S. 9th Circuit Court of Appeals ruling, which upheld U.S. Fish & Wildlife determinations that the Rock Creek Mine would not jeopardize bull trout or grizzly bear.
Costello said the 9th Circuit “blindly deferred” to the federal agency.
“The Montana Supreme Court did their homework. They did their research and I think that’s why we got this decision. Their decision was based on science,” said Costello. “I’m not sure what the 9th Circuit’s decision was based on.”