The Montana Supreme Court justices at a hearing on May 11, 2023. (Photo by Blair Miller, Daily Montanan)
A large mining operation north of White Sulphur Springs that could impact some of Montana’s most prized rivers, including the legendary Smith River, has been given approval for mining operations after a challenge at the Montana Supreme Court.
In a 5-2 decision, the state’s high court last week decided that the water the mining operations would pump or produce was neither a beneficial purpose nor a wasteful one, and therefore falls outside of the jurisdiction of the state’s water laws, although two justices, Laurie McKinnon and Ingrid Gustafson, disagreed with the majority.
Instead, the Supreme Court said that the water the Black Butte Copper mine will have to pump, treat or put back into the groundwater system will be more akin to shifting water around, rather than using it.
The lawsuit was brought by Montana Trout Unlimited, the Montana Environmental Information Center, Earthworks and America Rivers, and challenged both the Montana Department of Natural Resources and Conservation and the mining company, Tintina Montana.
The majority opinion, authored by Justice Jim Rice, said that the mining operations could proceed because Montana law says that “dewatering” a mine — or removing the water so that mining operations can continue or proceed — is “categorically exempted” from the legal definition of waste water. Moreover, it does not constitute a beneficial use either, meaning that the water and removal is not subject to the authority of the state’s Department of Natural Resources.
“The mere dewatering of a water source without a beneficial use does not constitute an appropriation; therefore, no water right can be established solely by dewatering,” the decision said.
The group of challengers argued that a plan to capture the water and treat it before releasing it back was either a wasteful use of water, or, if it was a beneficial use, then it should be subject to water right appropriations, which are controlled by the state and mandated by the Montana Constitution.
But Montana’s high court rejected those arguments, saying that the state could regulate the beneficial uses of water as well as regulate waste water, but couldn’t control water that fit in neither category.
Rice was joined by Chief Justice Mike McGrath, as well as fellow justices Beth Baker, James Jeremiah Shea and Dirk Sandefur.
However, Justices McKinnon and Gustafson both disagreed with the majority saying that Tintina’s actions created a “giant loophole” where large amounts of water could be used without authority or state supervision.
“The court’s interpretation of the Montana Water Use Act undermines the statute’s purpose to protect senior water right holders and prevent piecemeal litigation by allowing for a giant loophole where large quantities of water can be withdrawn in a closed basin without mitigation simply because the party claims the water is not being ‘used,’” the dissent said. “The court’s dewatering loophole allows a large amount of water — nearly 150,000,000 gallons annually — withdrawn by Tintina to escape state oversight in direct contravention to the MWUA’s stated purpose.”