Montanore Minerals and the State Department of Environmental Quality have filed notices that they intend to appeal a July district court ruling that blocked the controversial copper and silver mine under the Cabinet Mountains.
Monday’s filing by DEQ and last month's notice by the Montanore Minerals Corp. don’t state the reason for the appeal to the Montana Supreme Court of what environmental groups called “a big win” in the fight to prohibit development of the mine in northwestern Montana.
But Luke Russell, a spokesperson for Montanore, said that generally they believe Lewis and Clark District Court Judge Kathy Seeley erred in her ruling.
"We will be setting forth the arguments on error briefings in 2020," Russell said. "Since it's in litigation we would rather put our arguments before the court" than outline them now.
"We believe errors were made, as does DEQ."
Rebecca Harbage, a spokesperson for DEQ, agreed with Montanore that errors were made, but diverges from the company as to what those mistakes encompassed.
"We … will lay out the basis for the appeal when we file our initial briefs," Harbage said late Wednesday. "The court hasn't laid out the schedule, and we can't comment on pending litigation."
Katherine O’Brien, an attorney with EarthJustice in Bozeman, which successfully sued the state over the mine’s discharge permit, said she wasn’t informed of the reasoning behind the appeal.
"But this doesn't come as a surprise,” O’Brien said on Wednesday.
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Earthjustice, along with Earthworks, the Montana Environmental Information Center, and Save our Cabinets, had argued that Montana DEQ illegally re-issued a water pollution discharge permit in 2004 for the proposed Montanore mine. The groups claimed that reliance on a 27-year-old permit would allow unnecessary pollution of Libby Creek and didn’t comply with current laws that better protect Montana’s streams.
The Montanore Project involves tunneling for copper and silver in the mountains between Libby and the Cabinet Mountains Wilderness Area. The ore body they’re seeking is under the wilderness area, while all of the above-ground work that has been done is outside of the boundary.
Mining operations were expected to last for 16 to 20 years, with the removal of 20,000 tons of material anticipated at peak operations, followed by 20 years of closure and post-closure work. The mine anticipated employing 450 people at full productions, and is being proposed by the Montanore Minerals Corp., whose parent company is Hecla Mining Co.
In her July 24 ruling, Judge Seeley wrote that the DEA’s re-issuance of the discharge permit to Hecla and Montana was based in part on “arbitrary and capricious decisions” and violates the federal Clean Water Act and the Montana Water Quality Act. She vacated the permit, and remanded the matter to DEQ for further action consistent with her decision.
Noranda Minerals Corp. first sought a permit for the Montanore Mine in 1989, but ceased construction of an adit in 1991 based on elevated nitrates in surface water, coupled with low mineral prices. Yet the company continued with the permitting process and in 1992 its petitions to “change in Quality of Ambient Waters” was issued by the Board of Health and Environmental Sciences, which was the predecessor to DEQ.
The state issued a Pollutant Discharge Elimination System permit to Noranda in 1997, which allowed it to discharge water used in the mining process to groundwater and Libby Creek. In 2002, after Noranda ceased exploratory mining operations and allowed most of the permits associated with the project to expire or terminate, the discharge permit remained in effect by DEQ to oversee reclamation, not to regulate mining, according to Seeley’s ruling.
Hecla eventually acquired the project through a series of trades and sales. Seeley agreed with the environmental groups that DEQ unlawfully relied on an outdated pollution authorization, which had been issued in 1992 to a different company for a different project.
She added that restrictions on degradation of high-quality waters have changed since the 1992 authorization. In particular, the 1992 permit would have allowed Noranda to discharge mine wastewater and contaminated storm water into multiple streams that provide habitat for bull trout, which were listed as threatened in 1998 under the Endangered Species Act.
Some of the potential contaminants from the proposed mine include copper, manganese, zinc, ammonia and sediments.