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Disturbing News on Montana's Smith River, with David Brooks

Description: The Montana Supreme Court recently reversed a decision that would have blocked a copper mine on the headwaters of the Smith River. Where we thought we had a win in preventing a mine in the wrong place, we now may have to live with that mine. David Brooks [33:02] on Montana TU tells us how, at the very least, TU and other organizations convinced the mine to put in a number of mitigation solutions that were not in their original plan. Trout Unlimited has one more hail Mary on this issue, which you can learn about in the podcast. This is a tough subject to listen to, but we learn that we can never give up on environmental issues, even when it looks like we've won.
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Podcast Transcript:

Tom: Hi, and welcome to the "Orvis Fly Fishing Podcast." This is your host, Tom Rosenbauer. And I got to warn you, this week's podcast is not a happy or pleasant subject. We've had some disappointing news on a proposed mine on the headwaters of the famous Smith River [00:00:30.411] in Montana. And I've got David Brooks from Montana Trout Unlimited on the podcast today to talk about what happened, what can be done, and what you can do to maybe help mitigate a solution to this issue. So, not very often that I have podcasts that don't have a happy topic or an uplifting topic, but I think it's important for all of us in our [00:01:00.456] education as fly fishers to be aware of these issues. So stay tuned, and David will explain the situation to us.
Now, to some happier topics. Just wanted to give you an update on my wading staff, because I have mentioned in a past podcast on wading safety, that I don't use a wading staff or not very often. And I promised you all that I would get a wading staff. And I got the new Orvis Wading Staff, which I absolutely [00:01:30.663] love. It's really lightweight. You don't even know it's there when you're not using it. It expands quickly without any tools or screwing or unscrewing anything. It's ready when you need it, but it's in a little pouch behind you when you don't need it. It's very, very secure. And I just loved it. So I used it. I fished for Chilean in ten days. For ten days, and I only used it three days. [00:02:00.875] Now, I had it on my belt all the time, but I didn't use it unless I felt I needed it.
Well, one day, I used it when I really didn't think I needed a wading staff, but I used it anyways. And, yeah, I felt like I could get around a little quicker and with a little more agility. Another day, we were floating a canyon with a guide in a raft, and we got to an area of [00:02:30.484] rapids where it was too bony for the guide and two anglers to stay in the raft. So we had to get out of the raft and go down some fairly hairy rapids, waiting down some fairly hairy rapids to meet the guide at the bottom. He was gonna get the boat down through the rapids by himself. And I'm glad I had the wading staff then because it was a little tricky, but no problem at all with the wading staff.
And then another day, I fished a [00:03:00.288] lower part of a river with very slippery rocks and had to cross back and forth, I don't know, four or five times from one side of the river to the other to get in the spot I wanted to fish. And I was really glad I had the staff. I don't think I would have gotten across without falling in without the wading staff. So anyway, that's the update. I'm using it. And those of you who are worried about me, I'm gonna be a lot more careful in the future. [00:03:30.223] Now let's do the fly box. And speaking of the fly box, which you can send me questions to the fly box at This email address is being protected from spambots. You need JavaScript enabled to view it. either just type your question into your email or attach a voice file. But one thing about voice files, please try to keep them under two minutes because if your call is too long, I don't really wanna edit down your call and remove some of it. But also, I get complaints from people if you [00:04:00.638] ramble on too much. So just present the issue or the question or the tip. Don't give me too much background unless it's relevant to the question that you have, and then just state your question or give your tip. Otherwise, I'm gonna be reluctant to use it on the podcast.
And one final thing is, with the new Helios rods out, I'm getting a lot of rod questions, and I don't get to your questions [00:04:30.875] right away. You know, sometimes it's weeks and weeks and weeks before I answer your question. And you might be hot to buy a new fly rod. There's a lot better place than me. I'm flattered that you want my opinion on what to get, what model to get in a new fly rod. But, you know, we have a dedicated team at Orvis called the Outfitter team, and these are 11 experienced anglers who answer these kind of questions all day long and talk through the various rod models with people. So [00:05:00.577] if you have a question about rods, and it's, you know, a fairly simple one, just get a hold of them either through email at This email address is being protected from spambots. You need JavaScript enabled to view it. or on the chat on the website. Or you can also call 800-548-9548 if you wanna have a phone call with these people, because they're the experts at that. They answer these kind of questions with customers around the world [00:05:30.392] all day long, and they're a lot better positioned, I think, than I am to give you advice on what rod to buy.
All right, let's start the fly box. The first one is an email from Tom from Connecticut. "Hi, Tom. I've come across many contradictory explanations and definitions of tailing loops. What are they and why are they called tailing? What's the tail? How do they produce a wind knot? [00:06:00.383] What is a loop that isn't a tailing loop called? Ignore the question if you've answered it many times. And thanks for the podcast and all you do to help us become better anglers and better stewards of the environment in which we fish." Well, Tom, I don't know if I've answered this question specifically before, and I don't know where the word "tailing loop" came from, but basically, it's any casting loop. And when you're fly [00:06:30.884] casting, you're always forming a loop one way or the other. And a tailing loop is when the top part of the loop drops down below the bottom part. In other words, when you make a forward cast with your fly rod, it forms a loop that looks like a candy cane. And the long end of the candy cane at first is gonna be coming off your rod tip, and then above that, is gonna be the shorter part [00:07:00.395] of the loop. So imagine the round part of the candy cane going toward where you're directing your cast.
Now, if that loop loses its candy cane shape, in other words, if the top piece drops below the bottom piece, you're gonna catch your fly on your rod, or your fly line, or your leader. It's gonna rob you -of power. And it's just not something you want to happen when you're fly casting. [00:07:30.031] And that's a tailing loop. And, you know, in the extreme example, it can actually form an overhand knot as the fly unfurls and put a wind knot in your leader. So you always wanna make sure that you get that rod tip and the bottom part of the loop out of the way of the top part of the loop. And it might be a really narrow loop if you're casting with a lot of force and a lot of [00:08:00.889] effort and you're trying to drive your fly into the wind. Or it might be a more open loop if you have an indicator and some split shot or a big streamer or something on there. But regardless, you don't want the top part of the loop to go below the bottom part of the loop.
So how do you do that? Well, most cases a tailing loop comes from pushing and pulling on the rod instead of an up-and-down motion. So when you fly cast, you're lifting that fly [00:08:30.477] line up in the air behind you. But then when you come forward, you're really coming down. You're coming forward a little bit with the rod tip, but you're also coming down, and that drops that rod tip and the bottom part of the loop away from the top part of the loop so everything clears, and it should land nicely for you. One of the best ways to avoid tailing loop is to just make sure that you're raising and lowering your elbow [00:09:00.298] when you cast. Your elbow shouldn't be going back and forth. It shouldn't be like a pushing-and-pulling motion. Your elbow should come up and then it should drop down to your side. Any pushing and pulling motion is gonna probably give you a tailing loop. So that is it in a nutshell. Hope that answers your questions, again, I don't know where the term "tailing loop" came from. Maybe because it tails behind the rest of the line. I don't [00:09:30.856] know.
Here's an email from Bill, "I hope you're doing well. Thanks for all the time and effort you put into not only a podcast but as an ambassador for fly fishing in general. Today I have both a question and a tip. First, the question. I often find it difficult to get time on the water, probably a familiar challenge for some, and lately, I've been trying to make more time for practice casting on a field near my house. I'm using a smaller rod [00:10:00.999] and practicing accuracy. I generally use a yarn indicator in place of a fly. I have a saltwater trip coming up at the end of the month, so I wanna practice with my 8-weight rod. I expect I'll be casting fairly large flies. Is a yarn indicator enough air resistance to effectively substitute for a large fly? Or should I tie up a similarly sized simple fly on just a shank? Would it make enough difference, or would I be wasting my time?
Now the tip, I've lately [00:10:30.243] gotten into fly tying, and I've fallen for it in a big way. I've found that with buying fur, it's often, but not always, more economical in the longer term to buy a full pelt rather than just a patch of skin. For example, a patch of muskrat fur costs $2.50, but a full pelt costs $13 and is much larger." Well, Bill, you know, I think that some saltwater flies, besides having more [00:11:00.027] air resistance than yarn, might have some weight to them. You might have some dumbbell eyes or even some lead eyes on your saltwater flies. So I think a good way to practice, to really effectively practice is to, as you say, either tie a similarly sized fly quickly on a shank, or just on a hook and, you know, an old hook and cut the hook off. Maybe a used hook that, you know, maybe you got an old fly that you don't wanna use anymore because you tied it [00:11:30.603] early on in your career.
You can just use a razor blade, cut the material off it, and just tie a simple fly with lead eyes or the same amount of bucktail and saddle hackle that you will be casting. But I think it's a better idea. And also, make sure that you use the same length and diameter of leader that you'll be fishing, probably using an 8-weight. You're probably gonna be using a 9-foot, 12-pound, or [00:12:00.512] 16-pound leader. So that's the best way to do it. And regarding your tip, that's a great idea. You can't always find full skins of all kinds of furs, but muskrat's fairly easy to find a full skin. So thank you for that tip.
Al: Hi, Tom, this is Al calling from Boise, Idaho. I've called before and you've been very helpful. So I have a couple of issues that I would like you to help me with. The first is the issue of shelving [00:12:30.964] riffles, and Dave and Amelia Jensen talk about these and how to fish them and all. So in our western rivers, they're usually pretty good-sized rivers. If I'm faced with a shelving riffle that goes upstream, I'm usually very effective with any type of fishing streamer, dry fly, or nymph, working that riffle out into the stream. It's more challenging when that [00:13:00.311] shelving riffle is going downstream. If you wade out on that riffle, you're typically clouding up the water in front of you and the fish is facing you and I find that harder to fish. If you could give me some tips about that...
And the second area, and often they have a countercurrent on these shelving ruffles. But the countercurrent also, when I get in the [00:13:30.855] stream at the base of a countercurrent and shuffle a little mud up, I feel like I hurry to the head of the pool to avoid the mud going up and clouding up the area I'm fishing. So those are two things that maybe you could make some comments about.
And finally, I have a 8-weight hydro salt that I use quite a bit [00:14:00.385] for trout, salmon, Dolly Varden, etc., char. But I'm gonna be trying a little bit of saltwater fishing. I'm gonna try a little for bonefish and then I'm gonna do a redfish trip. So I was wondering what a good line for that would be. I don't want a specific bonefish and a specific redfish line. I just want one line. So something for my 8-weight hydro salt. Thanks very much. Look forward to your comments. [00:14:30.756]
Tom: So, Al, that is a problem. And I recently experienced that in a pool where there was a countercurrent and I was working upstream, and it was muddy on my bank. And all of a sudden, I realized that all that mud was going upstream into the riffle and probably didn't do me any good. So there's a couple of ways to solve it. One is, if you're just approaching from upstream [00:15:00.295] and you wanna fish the riffle, try to either stay on the bank or at least stay back away from where you're fishing ground. Take your first few casts from the bank and then gradually move out into that riffle and fish downstream. But, you know, if you do that properly and you watch where the debris goes, you can probably fish clean water that hasn't been disturbed with debris as you work across. [00:15:30.847]
And if you are working upstream into a riffle and you have that countercurrent, boy, you gotta maybe stay on the bank or you gotta maybe look at the other side of the river if you can get across, maybe the other side of the river isn't so silty. Maybe it's rocky and gravelly and you won't disturb it. But it can be difficult. And if you can only wade one side and it's muddy and you can't fish from the bank, then, like I said, you're gonna have to [00:16:00.449] go quickly and deal with it.
Regarding a good general line for bonefish and redfish, the line I use most often in saltwater is the Pro Saltwater All-Rounder Line. This line will be good in all but the very, very hottest situations when you're on the deck of a really hot boat because it can get slightly sticky, but it has a really good temperature [00:16:30.571] tolerance for cold and warm water and it's just a great all-round line, and I think that would be all the line you need. And you can also use that in fresh water for bass or, you know, up north for striped bass or, you know, any other place. Pike fishing. Any other place, you use an 8-weight line, that's a great line to use.
Here's an email from Dan from Texas, "What's the idea of a wing on a wet fly? I like the beadhead soft tackle from your [00:17:00.338] beginner's tying book, and I like the partridge in orange or Tenkara flies tied uniformly around the shank for swinging flies. It seems to match an insect size profile better than a winged wet, so I don't see the need to add a wing. Am I missing something?" Well, Dan, you could be missing something. You know, back in the old days, 150 years ago or so, nearly all the flies people fish were winged wet flies. And so there must be something about [00:17:30.641] them. They are an older style, but there's still a need for them. There's a couple of situations where a wing on a wet fly may help.
Well, there's maybe three situations. One is that sometimes our wet flies can imitate little teeny, teeny tiny bait fish that's just hatched. And I think that a wing on a wet fly gives it a little bit more of a minnow profile. [00:18:00.556] Another situation is caddisflies. Caddisflies, when they come back to the water to lay their eggs, many species of these flies, the females dive underwater and lay their eggs on rocks and aquatic vegetation, and they actually swim underwater, and they have wings at this point because they're an adult fly. So in a situation like that, a winged wet fly makes sense.
And then finally, either drowned mayflies [00:18:30.434] that have tried to hatch and didn't make it, and this happens quite a bit, or spinners that come back to the water to lay their eggs and then die, they're eventually gonna sink. And so in those cases, also, a wing-wet fly makes sense because these flies do have wings. So, you know, with a wet fly or a subsurface fly, we're not always trying to imitate an aquatic insect larva. Sometimes we are trying [00:19:00.113] to imitate a drowned adult. So that's the reason for putting some wings on some wet flies.
Here's an email from Mike from western Massachusetts, "Tom, my question is, do you use a loop connection that comes on fly lines and use the loop-to-loop method, or do you cut off a loop and use a nail knot? My reason for asking is I watched a few videos where the host explains that the energy that is being transferred down the fly line taper gets to the loop-to-loop connection. And because the fly line is basically [00:19:30.500] doubled at that point, the loop is twice as diameter of the taper. That causes the energy transferred to be forced in a downward direction, causing the loss of the generated energy not to roll over into the leader, into the fly. It was referred to as not a perfect taper. Your thoughts on this, Tom?" Well, Mike, that theory does make sense. In practicality, I don't see it as being a problem. I keep the loops on my fly lines, you know, unless they get cut. [00:20:00.304] And there's one good reason.
Well, there's a number of reasons. One reason is that if you wanna, say, change from a 12-foot leader on a bigger river to a 7-and-a-1/2-foot leader on a smaller stream, it's a lot easier to make a loop-to-loop connection to change your leader length than either extending your leader or having to tie on another nail knot. Of course, every time you tie on a nail knot, you lose a little bit of your fly line. The other reason [00:20:30.544] is that with a floating line, especially, that loop actually adds a bit of extra flotation to the tip of your floating line. Floating lines tend to sink a little bit at the tip. Often if they get a little debris or algae on them, they get a little dirty, they tend to sink. And having that little bit of extra flotation is often beneficial for line mending, for detecting strikes, [00:21:00.246] for picking up off the water. So I personally don't see where there's an issue with casting using the loop-to-loop connection. It's a fairly small loop, it's not that big, and it's kind of compensated for by the air resistance of the leader itself. So I don't see where they're a problem, but many people cut them off and that's fine.
Here's an email [00:21:30.821] from Felix, "Hi, Tom. I am a 15-year-old striper fisherman who lives in Connecticut. I fish an estuary within biking distance of my house with a bridge across it. It is heavily lit, and therefore I'm incredibly lucky to be able to watch the behavior of stripers down below. It is a hotspot where big 30-pound plus fish corral bait, and I usually start on top to spot fish and then cast in those areas from down below. My question is do you have any recommendations for how to film their movements from the bridge? [00:22:00.761] My camera never seems to be able to get as clear an image as I'm able to see, even though the water is only 3 to 4 feet deep." So, Felix, that's a tricky one. Fish that are underwater, even though the water is clear, there is always some distortion, and there's always a little bit of debris in the water that kind of makes your images of the fish not look so sharp. [00:22:30.382] And I think it's probably due to our brain and our eyes adjusting to that and thinking we're seeing the fish more clearly.
And also, with phone cameras and with inexpensive point-and-shoot cameras, the camera will often focus on the surface of the water, not 3 to 4 feet below it, particularly if you got a light on a bridge. [00:23:00.599] And so the one thing that I could recommend to you, it's not gonna be cheap, is to get a high quality DSLR or mirrorless camera and manual focus it, or find a camera that you can manual focus, because, again, I think the camera is gonna focus on the surface of the water and not the fish down below. And if your depth of field is fairly shallow, [00:23:30.743] the fish is gonna look blurry. So I would try that, but it's a very difficult photographic challenge and not easy to solve.
Here's an email from Tom, "First, let me say if you are confident and proud of your podcast, it is well deserved." Well, thank you, Tom. "Question, I have a four-rod rooftop quiver for my fly rods. I love the safety and [00:24:00.826] convenience it gives me when I'm going from one stream to the next. Should I be concerned about leaving the fly rods in the car top quiver for long periods of time? I have some concerns about the temperature inside the rod quiver through the heat of summer days." Tom, you don't need to be worried, and I get this question all the time. There is no temperature inside your car, or inside your rod quiver, or inside your garage that is going [00:24:30.969] to hurt your fly rod, your fly reel, or your fly line. Unless your environment gets to the temperature of an oven-roasting chicken like 350 degrees, there is nothing that can harm your rod. So I would keep them in that rooftop quiver all summer long. No matter how hot it is, [00:25:00.700] it's not gonna get hot enough in there to affect any part of your gear.
Here's an email from Richard from Massachusetts, "Tom, I have been tying flies for many years, although you might never know that by inspecting my product. I do, however, have a couple tips to pass along to your listeners. I use a lovely old roll-top desk for my fly-tying bench, a piece of furniture that has belonged to my wife's family for many years. In common with a lot of old desks, it has a wooden desktop that is finished bright. In order to [00:25:30.538] protect the desktop and my marriage, I took a sheet of white poster board 14 inches by 22 and laid it over the top before I started to tie. As well as protecting the desktop from drips and scratches, the white surface is the perfect background for my fly tying. Poster boards are cheap, and I can replace them easily should I need to.
The other tip is about sizing materials. We all know that proportions are critical to the fly tying process, but sometimes those measurements [00:26:00.311] can be hard to quantify. I have a particular struggle with things like the size of deer hair clump for wings or compare-style flies. In an effort to measure the deer hair clumps, I now use a drill gauge, which is simply a card with multiple holes in it from 1/2-inch down to 116-inch in 164-inch increments. I have determined that, for instance, a size 18 sparkle done works with a 964 [00:26:30.328] clump of deer hair. It is not perfect because it's somewhat hard to manipulate, but it is a step toward quantifying what a clump is besides measuring it next to a pencil.
The other place I use the drill gauges for sizing odd tungsten and brass beads that have escaped from the corral and end up on the floor. They're usually sorted by size and weight, but a 2.8 looks a lot like a 3-millimeter bead. However, by passing them through the holes of the drill gauge, I can determine exactly [00:27:00.166] what is what. The drill gauge is simply a plastic sheet with the holes in it, and it's often used as a promotional giveaway from old-school hardware stores. Tom, thanks for all you do for your community. Thanks to you, Tim Flagler, and others for keeping the art of fly tying alive and thriving in a world where many traditional handcrafts are losing ground to the computer and 3D printing."
Well, thank you, Richard. Those are great tips. You know, the one [00:27:30.596] caveat that I might suggest, particularly for measuring deer hair, is that every time you go to a new piece of deer hair, you're probably gonna have to reevaluate the size. Because a clump from one deer hair might work on a size 18 fly in a certain diameter, and a clump from another piece of deer hair might not. So you may have to modify that a little bit. [00:28:00.082] The drill gauge is a great idea. The other option is a bead gauge that's sold by Hareline that also has a hackle gauge on it, so you can gauge the size of your hackle's little post that you wrap your hackle around to see what size it is. And so that's a really handy device that I keep on my fly tying bench all the time. But drill gauge is a great idea too. [00:28:30.500]
Here's an email from Ryan, "Thanks for everything you do for the fly-fishing community. I was listening to the How Fly Rods Are Developed podcast with Shawn Combs, and it got me thinking, would a one-piece rod perform better than a four-piece rod? How come we don't see one-piece rods? Maybe I'm missing something. Obviously, having a multiple-piece rod is convenient, but if Orvis is truly after perfection, would a one-piece rod be the next step in the evolution?"
[00:29:00.653] Well, Ryan, we actually sold a one-piece rod in an earlier version of the Helios rods, and they were great rods and everybody loved them, but they didn't sell very well because nobody could travel with them and, you know, unless you had a car top rod rack or you just kept your rod in your boat all the time, they were very difficult to transport, very inconvenient, tough to ship. And [00:29:30.313] honestly, with the ferrules technology that Shawn and the other rod developers and designers have come up with, it is extremely difficult to even tell a four-piece rod from a one-piece rod. Those ferrules are so precisely designed to make sure that they transfer the energy down through the rod, that a one-piece rod is [00:30:00.920] really not much better, if any better, than a four-piece rod. So yeah, it can be done, but people don't buy them, so we're probably not gonna make any more.
Jay: Hey Tom, thanks for all that you do, and thanks for the great podcast. So I am a new fly fisher out in Massachusetts, and I started in the late summer, and I think I finally got a handle [00:30:30.671] on things with winter fishing with nymphing strategies and whatnot. Well, I visited one of my favorite local rivers, trying my typical nymphing technique to no success. And what was funny is that towards the end of what was, you know, two, three hours of fishing, me and three other fly fishers are out there nymphing, when a guy with a spinning rod [00:31:00.630] walked up in the middle of us all, threw his lure in and immediately pulled out a nice trout. So that got me thinking, was the mistake I made in that situation that I didn't switch over to a streamer tactic sooner? Or was I probably just not using the right flies? Or, you know, was I just unlucky that day?
So I guess my question is, [00:31:30.513] when something like that happens, you know, should it influence your strategy? Should it influence sort of the way you approach the river and think about what you're doing? Because, you know, if he's using a spinning lure or something, I would assume that would be very similar to sort of just a streamer tactic. So, thanks.
Tom: So, Jay, that's an interesting one. You know, what I'm thinking is there was probably one aggressive fish in the pool, and [00:32:00.516] it just happened to not like that spinner or whatever lure the guy was using flashing in front of its face and took a whack at it. Should you have gone to a streamer earlier? Maybe, I don't know. But, you know, spinning lures are sometimes more effective than a streamer in high water or dirty water, really fast, heavy water. And, you know, that guy just catching one fish on a lure wouldn't really [00:32:30.928] tell me that, "Maybe I should have been fishing a streamer all day." If the guy caught two or three fish in front of me, then I'd think, "Yeah, I should be fishing a streamer." But, yeah. Should you have tried a streamer earlier? Maybe. But there might have been just that one fish in there that happened to get really upset with that spinning lure in its face so I wouldn't agonize over it.
All right, that's the fly box for this week. Let's go talk to David Brooks about the situation on the Smith [00:33:00.583] River in Montana. Well, my guest today is David Brooks, who is executive director of Trout Unlimited for the State of Montana. And David, as I warned people, this is not gonna be as fun as most of my podcast interviews, nor is it gonna be as uplifting, right? We've got some disturbing news coming out.
David: True. [00:33:30.648] We can throw on some fish talk if we need to, you know.
Tom: Yeah, we gotta make this a little positive. But tell us what's going on on the Smith River right now. Where are we and what happened?
David: Yeah. So I think last time we did this, we were talking about a proposal for a major copper mine in the headwaters of the Smith River. That proposal started almost a decade ago, and Montana Trout Unlimited and Trout [00:34:00.203] Unlimited National and other groups have been trying to protect that river from this mine for that entire time. And where we wound up is with a couple of court challenges to the mine, one in particular challenging the company's permit that was issued by the state of Montana a couple, two years ago.
And we won that case in a district court hearing on all counts challenging that [00:34:30.778] the state and the company had not done thorough enough analysis to how the company was gonna store its potentially toxic waste and how it was discharging nitrogen-polluted water back into Sheep Creek, which is the main trout spawning tributary to the Smith. And, yeah, we won on all counts in district court. And the company and the state appealed to the Montana Supreme Court. And just [00:35:00.567] a little over about two weeks ago, the Montana Supreme Court ruled against us and reversed the lower court's decision and so reinstated the company's mining permit.
Tom: What was the reason the Supreme Court gave for reversing the decision?
David: Yeah. I mean, in a nutshell, it's that the court said that courts should defer to the state agency in analyzing [00:35:30.964] environmental impacts under Montana law. And the court had no real place in doing that analysis, and they deemed that the state had done proper analysis and so they should have the permit back and that the lower court, the district court sort of overstepped that agency deference.
Tom: So the blame, not blame, but the reason for the issue really resides with [00:36:00.310] the state, right? With the state environmental agency.
David: I think it maybe goes even deeper than that into the state laws that govern what the agency can and can't do. In spite of what you'll hear mining companies claim, Montana and much of western U.S. continue to have fairly lenient permitting laws when it comes to hard rock mining. [00:36:30.402] That's certainly the case in Montana. In fact, they've gotten weaker in the modern era as our legislature has made it more of a checkbox exercise. As long as our Department of Environmental Quality looks at the application and evaluates that, they really don't have a way to say no. They can simply say they took a look and that the company has provided all the information that is required. [00:37:00.072] So, yeah, it's permit-friendly laws, and that's what governs the state's decision.
Tom: And mines.
David: You know, this decision by the Montana Supreme Court was certainly, I think, a gut punch for many of us who have been working on it and most Montanans who support protecting the Smith River. And the more than 10,000 people who commented on [00:37:30.447] the evaluation of this permit and said, "No, we don't wanna mine on the Smith for very good reasons." But the public input also is not substantively included in the permit decision. And although, like I said, it was a gut punch, when you step back and recover from that, you also realize that no major mine has been denied a permit under modern laws in Montana. [00:38:00.543] And no challenge to that has been even as successful as this challenge was through the lower court and, you know, now being overturned. And so in some ways, it's par for the course. You know, Montana continues to permit mines, in spite of the long history of problems they cause.
Tom: Especially in headwater areas. I mean, there are probably places you can, and it's [00:38:30.426] copper, right? That this mine is.
David: Yes.
Tom: There are other places, I assume, where copper can be mined without threatening headwater streams.
David: Sure. Yeah. In fact, Trout Unlimited and others did a big report sort of on nationally where there are areas of known copper and other valuable metal reserves that [00:39:00.345] maybe are more appropriate to look at versus those that are in cold water headwaters. And, you know, yeah, there are lots of places where mining can be done, and it's not that it has no environmental impacts, but we were looking through the lens of cold water and trout waters.
So it's just that it's a tough place to think that mining can be done and not have significant impacts to water quality and quantity. [00:39:30.775] I mean, it's right adjacent to the main tributary to the Smith River, provides half of the cold, clean water, and is probably the most important when it comes to trout spawning. You know, the tailings facility, where all the waste is gonna be stored, is on top of known wetlands and intermittent streams. So there's a direct connection to the waters that flow down the Smith.
Tom: And [00:40:00.029] why did the state issue this permit? Did the state say that this mine was not gonna damage the headwater streams?
David: Yeah. Ultimately, I mean, they say that their analysis shows that it will have no significant environmental impacts. And that's why we challenged it because our own independent experts who we hired to take an independent look at it [00:40:30.681] as well as just our own read of it, said there are major data gaps to be able to claim that. For example, one of the glaring ones is the company is proposing pretty new experimental technology in how they store the tailings that would possibly turn acidic and cause acid rock drainage and a whole cocktail of contaminants getting into water.
And the experiment [00:41:00.636] is storing those things and putting some cement in with them so that they're hardened and more stable. That's been done in one place at large scale on the globe. And where it's being done, it's tailings that aren't acid-generating and degrade things like cement. And so it's not really apples to apples if you use that as your evidence [00:41:30.309] that this is gonna be safe. And it just seems like the headwaters of the Smith is not a place to experiment with that.
And furthermore, the sort of, like, lab testing that the company did with, you know, small amounts of rock from the site, put some cement in it, see how it performs, quantities of cement than they're actually gonna use on-site. And of course, on-site, we're talking about over the [00:42:00.311] course of the mine, 12-plus million cubic tons of this stuff, not some 3 by 6 little cylinder of it in a lab. So it's just on a scale that's vastly different. And to have not tested the actual small amount of cement that is gonna be used at the site seems like a huge gap in doing an analysis and being able to claim that there aren't gonna be environmental impacts. [00:42:30.571] And that's just one example. The evidence doesn't really add up to the claim that the state has made that this is gonna be safe.
Tom: Okay. No one in TU or I don't think any anglers that I know of are antimine. And we should state that very plainly, that our way of life...I mean, we wouldn't be talking here and [00:43:00.600] recording this without minerals that came out of the ground, right? And our way of life depends on these things. But as with other mines that have presented problems, you can't put them everywhere.
David: Yeah. Right. It's not if we're gonna mine, right? It's where and how.
Tom: Where, yeah.
David: And, you know, where throughout this whole process, we have offered suggestions and [00:43:30.440] critiques that have led to, quite frankly, a better, safer mine than it would have been had we not been involved. Mining would have started, I think, a few years ago, and it would have been far less protective of the Smith. For example, in the initial application process, the state, partially based on comments we provided and critiques, sent that application back to the company three times and said, "This is deficient to do better [00:44:00.901] in terms of how you're designing this mine and the safeguards you're taking."
And so, you know, it's not a total loss that we've been involved. I think we have raised the bar of what this mine would look like. I still don't think it's high enough, given the values of the Smith. I just, you know... And I'm not alone in not thinking that that bar is not high enough, but it's higher than it would have been. And back to your original point, yes. In our modern [00:44:30.917] life, we need copper and other minerals, and there are other places they can be obtained or there are other ways that could be attained. At this site, you know, there were major changes that could be made, like where you're gonna put the waste, rather than in a known wetland and over intermittent streams, it could be moved to truly high and dry ground. And that would have gone a long way to making this mine more protective of the Smith.
Tom: Now, these [00:45:00.934] recommendations that you made and that they implemented, how are they enforced? Will there be regular inspections, and will they enforce these?
David: Yeah. I mean, one thing we did in coming to the eventual court challenges that we made was some negotiating on exactly that. What is monitoring gonna look like and the monitoring of water quality. And the fishery in Sheep Creek and the Smith [00:45:30.220] are more robust because of those negotiations. And so we'll certainly, assuming this mine does get off the ground, we'll be highly attuned to that monitoring, both in water quantity and water quality and how the fishery is doing.
Tom: And this will be independent monitoring, not done by the mine itself.
David: Paid for by the mine, but it will be publicly available data. DEQ certainly has an obligation [00:46:00.407] to inspect and... So, yeah, I mean there's no such thing as totally independent monitoring, as if, you know, somebody is doing it and it's not paid for by the company. It's their financial responsibility. So, yeah, I wouldn't go so far as to say it's wholly independent, but there will be scrutiny, I know for sure, and we'll be part of that.
Tom: So before [00:46:30.861] we go into what else can be done, and what Trout Unlimited would want people to do, let's take a little break and talk about the Smith itself. You know, we gotta make a little bit of positive news here. And I've never fished a Smith. I've heard about it and seen videos of it, but tell us what the river is like and why it's so special. [00:47:01.039]
David: Yeah. Well, I'll use a personal anecdote to start, which is that the first time I had the good fortune to float it's because a friend had a permit about 20 years ago, and I got invited to go. At the time, I didn't own a boat or a dry bag or any, you know, multi-day float gear, but I went down with my 15-month-old daughter. I didn't fish at all. I just rode in the boat and let her throw sticks and rocks over the side. And [00:47:30.532] yet, we had not only fantastic time, but life-changing time. I mean, our garage started to fill up with boating gear. Have ever since done a weeklong or more float trip every season or every summer as our main family vacation. I mean, and it's part of the reason I got into conservation. It's literally life-changing.
You know, I tell that story because it's, in fact, not unique to me [00:48:00.941] that the Smith has that effect on many, many people. People get engaged and get married on the Smith, celebrate honeymoons there, cast the ashes of their loved ones into the Smith. It's just a special place to a lot of people, even if you're not talking about the fishing. But we are talking about the fishing.
Tom: And it's limited access, right? There's only a limited number of permits for floating the Smith every year.
David: Right. Yeah. It's been almost [00:48:30.668] 3 decades ago, the state created a permit system, so you apply and it's a lottery to get a permit to float 59 miles of the Smith, where once you launch, there's no other public takeout put in along the way. So you're in for the 59-mile ride, most of it through gorgeous limestone canyons. Limited permits, limited number of launches each day, and limited number of people on each trip, really in the interest of [00:49:00.526] preserving the wild and scenic character of the Smith.
And part of that is why the fishery is so special is that, you know, I have heard statistics that fewer than half the people who float the Smith even have a fishing license. People do it just because of all the other things the float includes. But people who do fish, you know, we're talking about [00:49:30.103] a limited season from weather permitting, sometime in April, through water levels permitting, you know, mid-July, anymore, you know, after July 4, it can get pretty bony. So just not that many people are fishing it. And so these fish, in my experience, are incredibly healthy and, you know, beautiful, great [00:50:00.455] range of size, classes of rainbow and brown trout. And they just don't get fished that hard, which is, you know, an increasingly unique thing. Major floatable river if you asked.
Tom: Yeah, it sure is. Yeah. And, you know, the scenery, the wildlife and everything, it's gotta be an amazing experience. Life-changing, as you said.
David: Yeah. Tom, I can't believe [00:50:30.661] you haven't been on this river. We have to remedy that.
Tom: No, nobody's ever invited me, David.
David: I will keep that in mind for sure. I, unfortunately, for whatever the 20 years since I first floated it, once again this year did not get a permit. So I, unfortunately, don't have an invite to extend to you this year, but I will keep applying.
Tom: Now, are there places at the put-in and the takeout where somebody could hike in and fish a little [00:51:00.457] bit of it?
David: It pretty quickly gets tough to wade very far below the put-in or above the takeout just because of the nature of the river. That would be tough to do for very far, even given Montana's, you know, first-in-class stream access law. But there are some private in holdings along the river [00:51:30.275] where landowners or anybody they allow or invite on can fish, you know, wade fish. And some of the major tributaries like Sheep Creek, there are other ways to access them through public lands, national forest lands, where you can wade and fish tributaries and camp out and have a great time. And I've known people who've done it, and that can be an equally awesome way to see the waters in the Smith watershed. [00:52:00.948]
Tom: Sheep Creek itself is a fairly good-sized stream.
David: It is, like I said, you know, at times, it produces about half the water in the Smith, both at base flows and during runoff. At times, it will be pumping out about half the water of the Smith. So you know, it can be I suppose at base flows, it's a creek. It's, you know, maybe 40, 50 CFS at a good year, [00:52:30.255] but then it can also put out 400, 500 CFS, you can order of magnitude more.
Tom: Okay. All right, so let's get back to our other subject. What recourse is there now? I mean, the state ruled, the Supreme Court ruled. Where do you go from there?
David: Well, you know, if you could manipulate copper [00:53:00.218] prices to be low enough that it wouldn't be viable to mine there, then that would be a showstopper. But barring that, we do have another challenge, legal challenge, to this mine that is gonna be heard at the end of this month. And that's on the company's water rights. And so the company, to operate, for them to be able to operate like any underground mine, they have to pump a [00:53:30.152] huge amount of water out of the mine. You know, you dig a big hole down the earth, and groundwater starts flowing in there. And to be down there and mine, you gotta pump that water out.
In the case of this mine, they're estimating that once it's fully operational, they'll be pumping something like 807-acre feet of water per year out of the mine. An acre-foot of water is an acre of land with a foot of water standing on it, quite a lot. [00:54:00.290] But they only have a permit for less than half of that amount of water for roughly 350-acre feet a year, because they claim they're only gonna use less than half. And so we have made the argument that, no, in fact, to mine, to be able to benefit from the mining, you have to deal with all of that water. Hence, you should have to have the permit to deal with all of it. They're gonna pump it all [00:54:30.429] out, store it in ponds, treat it, pump some of it back into underground wells that will hopefully reach the Sheep Creek again over time. Although that timing has not been well modeled, the water quality that they'll be putting back in will be different. Different in temperature, pH, different in nitrogen. In fact, that was one of our claims.
And so really we are claiming that their beneficial use [00:55:00.763] is all of the water. They are claiming, "No, we're only using half of it. The other, we don't even want. And so we shouldn't have to have a permit for it or water rights to mitigate for it." So that case will be in front of the Montana Supreme Court on March 29th, end of this month, and it's a high-profile enough case and an interesting legal question such that the Montana Supreme Court has decided to have that hearing in a much bigger venue [00:55:30.375] at the University of Montana in Missoula as part of what's called Montana Law Day, where the public and law students in particular, can come and watch the Supreme Court in action. I believe there will be a virtual option to watch that or at least listen in. So anybody who really wants to get into this legal question of water use versus nonuse or waste will be able to tune in. [00:56:00.860]
Tom: Now, regarding this water use, they're using groundwater, right? They're not using surface water.
David: Yes and no. So the water that will be in the mine that they have to pump out and will be using for some of their process, and then, like I said, storing, treating, pumping back into underground injection wells is groundwater, [00:56:30.292] but, you know, it's connected to surface water. In fact, Montana TU and others, many years ago won a very significant case in Montana in front of the Supreme Court, arguing essentially that groundwater is connected to surface water in the Smith. And so some of our claim is based on that previous case. The company also... So if they're gonna use 350-acre feet per [00:57:00.438] year, they have to have water rights to mitigate for that so that they don't dewater Sheet Creek. And those water rights are combination, ground and surface water rights that they'll be leasing from surrounding landowners who have agricultural water rights and are being changed to industrial water rights. So it involves both ground and surface water in terms of what they're gonna use and what they're gonna impact.
Tom: Okay. I didn't realize [00:57:30.762] that groundwater was included in water rights calculations.
David: Yeah. I mean, especially in a basin like this, that's a closed basin, meaning all of the water has been allocated no new water rights, and that includes groundwater because of that earlier Montana TU court case for my time.
Tom: Okay. So what can we as individuals do? [00:58:00.893]
David: Yeah. So there's another effort we have going on, which is to convince the U.S. Forest Service to start the process to do a mineral withdrawal on public lands around this area so that mining can never expand onto the public lands of the U.S. Forest Service. This current mine is being proposed all on private land. [00:58:30.448] But the company has advertised to investors overseas for years that this can be a 50-year project and a giant mining complex. And we're gonna expand onto Forest Service land.
So the Forest Service can take the action of proposing that they remove the public lands in this area from future mining through what's called a mineral withdrawal. And we've been asking them to do that. And currently, we have a petition out [00:59:00.266] that people can sign also requesting the Forest Service to start that process and just ensure that, okay, if this mine's permitted and it's gonna go forward on private land, that's one thing, but let's not have it move under Sheep Creek, farther along Sheep Creek, and onto public lands where people recreate in all manner of ways, hiking, bird watching, hunting, fishing, camping, you know, off-road vehicle [00:59:30.435] riding in places. And it's just full of cultural resources, petroglyphs, and there's a lot of cultural connections from numerous Montana tribes there. And, you know, we've gotten overwhelming support on this petition already, but certainly, if people have not signed that, please do.
Tom: How do they access the petition?
David: It's [01:00:00.882] on Montana TU's website. You can find it. There are all a bunch of other conservation organizations who have been with us on this. TU National has run a version of it. American Rivers, Montana Environmental Information Center, Montana Wildlife Federation, a group called Mountain Mamas. And I'm sure I'm missing some and apologize to those groups. But a number of groups have helped spread the word on this petition, [01:00:30.369] and we're super grateful for that.
Tom: Okay. So they can get access to signing this petition through any one of those organization?
David: Yes.
Tom: Okay. Great. What's Montana TU's website address? So that people don't have to go through a big search for it?
David: Yeah. No, the easiest thing to do instead of me giving you a URL, is if you just Google "Montana Trout Unlimited."
Tom: Okay.
David: You'll come to us. You could probably even Google [01:01:00.673] "Montana Trout Unlimited and mineral withdrawal petition," and you would get right there. Or, you know, I could provide you after this conversation with the URL, if you have some way of posting it with our conversation.
Tom: Yeah, I can do that. Yeah. If you wanna send it to me, I can post that URL.
David: Yeah, let's do that.
Tom: Okay. Does this have precedent, removing mining rights from Forest Service land? Has this [01:01:30.319] been done in other places?
David: Oh, absolutely. Yeah. In fact, it's been done not that long ago in Montana, in the upper Yellowstone, just outside Yellowstone Park, there was a threat of some mining just on the park border. And same sort of deal as this conservation organization, outdoor rec businesses, supported a mineral withdrawal to stop that mining, and it got, you know, very robust [01:02:00.649] bipartisan support in Montana and was done. And so there's a mineral withdrawal up in the headwaters of the Yellowstone River to protect same sort of thing. Fish, water quality, wildlife, way of life, outdoor rec economy.
Tom: And that's Forest Service land.
David: It is.
Tom: Has the same thing been done on BLM land as well?
David: Yes. So the BLM or the Forest Service can do mineral withdrawals. [01:02:30.219] In fact, one just got renewed for a bunch of area up near the former Zortman Landusky mine in Montana, on the border of the Fort Belknap Indian community. That was an area that was mined to disastrous effect. The company claimed bankruptcy and left Montana with the cleanup and ongoing, you know, acid mine drainage and water. [01:03:00.427] I mean, it's a real mess up there. And the BLM established a mineral withdrawal around there to prevent any future mining from damaging it more, and that got renewed. I don't know, man, the COVID years kind of run together probably about two years ago.
Tom: Yeah, they sure did.
David: Yes, it's a common tool. There's one that's nearing completion [01:03:30.469] for part of the boundary waters to protect places in the boundary waters. So, yeah, this is nothing new or unfamiliar to the Forest Service or the BLM.
Tom: Good. All right, David. Well, it's always nice to talk to you. I'm sorry that we had to talk about something that was discouraging. But...
David: Likewise, I wish we were talking about better news on this. But [01:04:00.607] I just wanna emphasize that, you know, thanks to everybody who has been part of this and paid attention for all these years. I mean, we really have established a higher bar for this mine than we otherwise would be. And to your point earlier, we're not anti-mining. Yes, we need these things. And I've been, you know, in conversations with mining advocates, when they've said, "We need these minerals for everything from our phone [01:04:30.334] life, and you get up in the morning and get on your phone right away." I say, "Yeah, that's true, but one of the first things I do in the morning is get up and get a drink of water. And clean water is pretty important in our lives as well." And there are just places where that value, I think, outweighs the value of mining. And that's why we've been in this. Not because we're anti-mining, but this just isn't the place for it. [01:05:00.547]
Tom: Pro water, not anti-mining. That's a good way to look at.
David: Right. Yeah.
Tom: All right, David. Well, I wanna thank you so much and thank Trout Limited for all the work you've done over the years. It's not over yet. Good luck on the water withdrawal issue. And if the mine has to go through, work on that... What was it, demining? [01:05:30.866] What was the term?
David: Yes. The mineral withdrawal. I will send you a link to...
Tom: Mineral withdrawal on the Forest Service land.
David: Well, I always appreciate your attention to this kind of thing, Tom. I wish all we had to talk about was just good fishing, but that's just not always the case so I appreciate it.
Tom: No, we'll do other podcasts that'll be just fishing, I promised people that.
David: [crosstalk 01:05:55.431] on the river, and then we'll just do one about the river and the fishing.
Tom: Sounds good to me. [01:06:00.205]
David: Okay, see you, Tom.
Tom: Okay, David, thank you. Thanks for listening to the "Orvis Fly Fishing Podcast" with Tom Rosenbauer. You can be a part of the show, have a question or a comment, send it to us at This email address is being protected from spambots. You need JavaScript enabled to view it. in the body of an email or as a voice attachment. You can find more free fishing tips at