It may not look like a creek, and for decades it has gone by the undignified name "Metro Storm Drain."

But three Butte activists have long believed that forcing authorities to call the polluted channel running parallel to George Street by its historical name — Silver Bow Creek — would be a key step in its restoration.

Friday — after a four-year battle against the state of Montana — they won.

Second Judicial District Judge Brad Newman granted the Silver Bow Creek Headquarters Coalition a summary-judgment victory in the long-running battle.

"This court concludes that Silver Bow Creek, including the contested stretch, is properly named Silver Bow Creek, and that there is no legal basis for Defendant (the state) otherwise referring to it as the Metro Storm Drain," Newman ruled.

That means the unorthodox coalition, comprised of  long-time Superfund watchdog Fritz Daily, activist Sister Mary Jo McDonald and radio-station general manager Ron Davis, took on the entire state and prevailed.

The channel runs along an area that was once an upstream reach of Silver Bow Creek. Now, buried mine and smelter tailings have contaminated the stretch, and a long-running dispute over whether to remove the waste continues.

At the behest of the coalition, Butte-Silver Bow placed signs along the mostly dry channel identifying it as "Silver Bow Creek" over the last two years.

The Environmental Protection Agency's 2006 record of decision for the Butte hill says Silver Bow Creek starts at the confluence of the Metro Storm Drain and Blacktail Creek. That confluence is easy to find at George Street just east of South Montana Street. But the creek's actual headwaters are at the Continental Divide.

While the coalition has now won the battle of semantics, the next steps are not clear. The coalition's strategy is that if the channel is officially and legally known as Silver Bow Creek, it becomes the state's responsibility to make sure it is an actual, free-flowing creek once again. Whether that's true is open to debate.

Even while the state fought the lawsuit over the name, it has also been fighting to see the pollution cleaned up. But the state's vision of a cleaned-up area does not include a free-flowing creek, which many experts say is not feasible.

The state has been locked in a battle with the EPA over the channel, which runs, roughly, from the Civic Center to the Visitor's Center, since at least 2006, when EPA's record of decision was signed.

The EPA determined in the record of decision that the polluted tailings along the channel, including the underground Parrot tailings, and surface pollution called the Diggings East and the Northside tailings, should be left in place.

The state wrote a letter of disagreement, which is part of the record of decision. The state has been fighting with EPA over the Parrot contamination, and the fate of the dry channel, ever since. Recently county officials have joined the state in demanding that the waste be removed from the corridor.

While the state, Butte-Silver Bow and the coalition agree the channel should be cleaned up, there are very different visions of what the cleanup will mean.

Whether the coalition supports the state's proposal, which does not call for a free-flowing creek, is unclear. 

"Whoever needs to (clean up the creek) needs to do it and I think the state has to be a part of that," McDonald said.

Davis said he hopes to see a free-flowing creek running through that dry channel once again. Where the water would come from is unknown. Davis suggested the headwaters of Silver Bow Creek, at the Continental Divide, could be brought by pipeline to Texas Avenue, where the dry channel begins. How that water would be reconnected, with both the 1,500-acre Yankee Doodle Tailings pond, owned by Montana Resources, and the Berkeley Pit, owned by ARCO, lying in between, is not clear.

Davis said he didn't know how it could be done but insisted water exists that could be made available to flow through the channel.

"There is water there," Davis said.

The affidavit written by the state says the channel "provides the largest load of mining-related metals to flow to Silver Bow Creek during storm events." It also says, "at this time, no natural or uncontaminated source of water exists that could potentially flow within the MSD constructed channel."

The affidavit also says the channel will be a part of storm water management in Butte for the foreseeable future.

Davis said he believes storm water catch basins could exist alongside a free-flowing creek. 

The coalition believes the leftover money from the lower Silver Bow Creek cleanup could be put toward cleaning up the dry channel. The state is already considering this, but how much will be available is not yet known. MDEQ project manager Joel Chavez previously told the Standard some of the leftover $45 million needs to be spent re-doing some of the early cleanup work near the I-90 overpass. Also, some money will need to be held over for operation and maintenance for the lower creek cleanup. MDEQ will be responsible for the lower Silver Bow Creek for the foreseeable future.

In addition, EPA, which was not part of the coalition’s lawsuit, has to sign off on any decision the state makes over what happens to the $45 million.

Davis said the coalition launched the lawsuit because both Butte-Silver Bow and the state were not fighting for the people of Butte.

"Somebody has to speak up and be the voice for the people of Butte," Davis said.

McDonald said Butte needs to be vigilant and preserve the future by doing things right today.

"For me this is another example for the people of Butte that they do have power, they do have rights, and it's in the best interest to preserve this community because this community needs to be here in the future," McDonald said.

Kristi Ponozzo, spokesperson for MDEQ, said MDEQ lawyers had not had a chance to look at Newman's decision yet, so the agency could not yet comment on the ruling.

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Nat'l Resources / General Reporter

Environmental and natural resources reporter for the Montana Standard.

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