HELENA — The Montana Supreme Court has upheld a state decision that will allow construction to move forward on a planned underground copper mine outside White Sulphur Springs.

Five of the seven justices sided with Tintina Montana, the operators of the Black Butte Copper project, and with the Montana Department of Natural Resources and Conservation. They rejected a challenge from environmental groups – including Montana Trout Unlimited, Montana Environmental Information Center, Earthworks and American Rivers – who argued Tintina should have had to get an additional water permit before starting construction.

The court heard oral arguments in this case in Missoula last March.

Tintina, a subsidiary of Sandfire Resources America, is planning to pump groundwater out of the mine while work is going on. Some of the water will be used in the milling process, while the rest will go through a treatment plant before they return it to the groundwater system. In some parts of the year, the water will be stored.

Tintina got a permit through DNRC for the water they’re using for milling. However, the department determined that they did not need one for the rest of the water because simply removing water from a mine did not qualify as a “beneficial use” under state law.

The environmental groups argued DNRC’s decision created a loophole that could allow mining companies to pump large amounts of groundwater without ensuring it wouldn’t have an impact on nearby streams and other water users.

Justice Jim Rice, writing the majority opinion, said there’s not a loophole because the impacts of mine dewatering will be accounted for through other state regulations. He said the state has followed this procedure for decades, and it’s up to the Legislature to decide if they’re satisfied with this system or not.

“DNRC’s interpretation of its duties under the subject provision of the MWUA has remained consistent in the 43 years since Kenyon-Noble and at no point has the Montana Legislature stepped in to modify DNRC’s categorization of mine dewatering as neither ‘waste’ nor ‘use,’ despite specific opportunities to do so,” Rice wrote.

Rice was joined by Chief Justice Mike McGrath and Justices Beth Baker, Dirk Sandefur and Jim Shea.

Justice Laurie McKinnon wrote a dissenting opinion, joined by Justice Ingrid Gustafson, in which she argued the court had created a loophole through this decision. She said the DNRC’s policy hadn’t gone through a formal rulemaking process and therefore hadn’t had the same level of public input. She argued the decision would “cause a great injustice.”

“If, because of agency policy, mine dewatering is not considered a beneficial use, then potentially unlimited amounts of groundwater can be withdrawn––even from closed basins––and discharged without any consideration and state oversight of how it will affect senior water rights holders or Montana’s waters,” McKinnon wrote.

This was the second case in less than a year where the Montana Supreme Court ruled in favor of the Black Butte project. Last February, they overturned a district court ruling that had invalidated the mine’s operating permit over claims the state hadn’t done enough analysis on the possible environmental impacts.

Nancy Schlepp, vice president of communications and government relations for Tintina Montana, shared a statement with MTN on the decision.

“We are grateful for this commonsense Montana Supreme Court decision maintaining longstanding water law in the state of Montana,” she said. “We appreciate the Court’s diligent review of this case. Following February’s Supreme Court ruling fully reinstating our permit, the entire Sandfire America team has remained focused on implementing a world-class, environmentally safe mining project, and today’s decision continues us down that path.”

Gov. Greg Gianforte also praised the decision in a statement.

“Today’s ruling from the Montana Supreme Court is a significant win for our economy, our state’s mining industry, and workers at the Black Butte Copper Mine,” he said. “This decision ends years of litigation that held back investment and the creation of good-paying jobs for Montanans.”

In a post on Facebook, Montana Trout Unlimited called the decision “a blow to the Smith River and future generations.”

“Our love of the Smith River is undiminished, as is our resolve to offer it the best protection we can,” the post concluded. “Rather than hang our heads, we will continue to pursue much-needed restoration work in the Smith watershed, monitor any activity undertaken by the mine, and fight to ensure that the Smith’s water quality and quantity are protected to the fullest extent of the law.”

Tintina has completed the first phase of construction at the 450-acre mine site, located in Meagher County about 17 miles north of White Sulphur Springs. The remaining work is expected to take about two years once it begins.