Montana Supreme Court overrules lower court on copper mine

The court’s 5-2 decision, outlined in an opinion released Jan. 26, overturns a 2022 District Court decision that found the DEQ had erred in its scrutiny of the Black Butte Copper Project before issuing a permit in 2020. Justice Beth Baker wrote the state high court’s majority opinion.

The underground mine in Meagher County is predicted to produce 14.5 million tons of copper-enriched rock mined from 1,888 acres over 13 years. Concerns about a 72 acre tailings pond was one of the main issues at the center of arguments by environmental groups.

Montana Trout Unlimited, the Montana Environmental Information Center, Earthworks and American Rivers said the technology proposed by the mining company using cement to harden the tailings was unproven.

But Supreme Court Justices Baker, Mike McGrath, James Shea, Jim Rice and Dirk Sandefur agreed the DEQ had done its due diligence by examining engineering reports, scientific studies and comparisons with other mining facilities around the world. In the end, the agency made a decision “supported by substantial evidence,” Baker wrote.

Last year mine owner Sandfire Resources, which changed its name from Tintina Montana in 2018, argued before the justices that the District Court judge could only evaluate DEQ’s process, not substitute its judgment for the agency’s. The Supreme Court justices agreed, citing previous cases to note “this standard does not permit reversal even if the record contains inconsistent evidence or evidence that could support a different result.”

Justices Ingrid Gustafson and Laurie McKinnon wrote the court’s dissenting opinion, arguing the state’s residents are constitutionally guaranteed a right to a clean and healthful environment. The copper to be mined at Black Butte “presents inherent pollution risks” because it is a sulfide ore body with high levels of acids and toxic metals, the justices wrote.

“Mining sulfide ore bodies, particularly close to ground or surface water, presents inherent pollution risks, and even careful water treatment and tailings waste management may be insufficient to avoid discharging noxious chemicals to adjacent ground or surface water,” the dissenting justices said.

The mine is located near Sheep Creek, a tributary of the Smith River. A 60-mile section of the river, dominated by steep canyon walls, is a state park. The river is so popular that it is the only waterway in the state with a lottery system to regulate boating use. This year, more than 12,400 people applied for one of the coveted permits.

“Today’s decision is a setback in the fight to protect Montana’s beloved Smith River, but we remain committed to protecting the river and all who depend on it,” said Jenny Harbine, an Earthjustice attorney representing the conservation groups. “Our challenge to the mine’s dewatering scheme is pending before the Montana Supreme Court and presents another opportunity to defend the integrity of this watershed.”

Arguments in that case will be heard on March 29. If the court strikes down Sandfire Resources water rights, the company cannot proceed with mining, conservation groups claimed. But the mining company said it now has all the permits it needs to proceed and that the upcoming court challenge does not “currently affect the company’s water rights package.”

Lincoln Greenidge, CEO of Sandfire America said in a statement, “Today’s victory in the Montana Supreme Court is a validation of the thoughtful and deliberate efforts of the Sandfire America team to design a world-class, environmentally safe mining project from the beginning.”

In addition to Sandfire and DEQ, the state of Montana, and Broadwater and Meagher county attorneys were defendants in the case.