The Rock Creek Mine was initially proposed in the late 1980s with the goal of extracting copper and silver from the Cabinet Mountains. After the mine was initially roposed, various state and federal agencies spent more than a decade examining the potential impacts that the mine would have on the surrounding environment, including Rock Creek, the lower Clark Fork River, and the adjacent Cabinet Wilderness Area.
Rock Creek and its forks support an important population of bull trout, Salvelinus confluentus. Although previously abundant in western Montana, bull trout populations had dwindled and in 1998 the U.S. Fish and Wildlife Service (USFWS) listed them as threatened in the Columbia River Basin, which includes the Clark Fork River basin and Rock Creek. In light of the bull trout’s precarious state, any action by Revett that results in sediment being deposited in Rock Creek could potentially extirpate bull trout from the Creek.
In the complaint, the Plaintiffs sought a declaratory judgment that use of general permits to approve stormwater runoff from the Rock Creek Mine would violate Admin. R. M. 17.30.1341(4)(e) because Rock Creek is an area of “unique ecological significance” based on considerations of impacts on fishery resource and local conditions at proposed discharge. On July 21, 2011, the District Court granted summary judgment to the Plaintiffs and declared the general permit void.
The Montana Supreme Court, in a 4-2 decision, has ruled that the Montana Department of Environmental Quality (DEQ) violated the state’s water quality laws when it issued a general construction permit that would have allowed Revett Silver Co. to build the Rock Creek mine in a wilderness area. The majority agreed with Montana Fish, Wildlife and Parks Department research showing that Rock Creek is an essential part of bull trout habitat that cannot be replaced if damaged. The court also agreed with a U.S. Forest Service conclusion that road construction over a five-year period would fill the stream with sediment that could “result in permanent loss of Rock Creek bull trout stock.” It ruled that DEQ erred in granting a general permit under a law that prohibits “the use of a general permit in an area of unique ecological or recreational significance.”
The dissenters argued that the majority based its decision on “a very selective review of the evidentiary record and one that is contrary to the record as a whole.” According to the dissenting justices, DEQ properly issued a general permit and the court should have deferred to the agency.