Laura Lundquist

(Missoula Current) Arlee residents are trying to raise money to take the next step in stopping a pending gravel pit: a lawsuit against the Department of Environmental Quality and maybe one challenging a recently passed law.

On Thursday, a GoFundMe campaign was created to raise money for litigation against the Marvin Rehbein Asphalt Plant and Gravel Pit pending on land less than 3 miles north of Arlee on the Flathead Reservation.

The group, neighbors and the Confederated Salish and Kootenai Tribes have tried to get the Department of Environmental Quality to reject the Riverside Contracting, Inc., application since it was submitted more than a year ago. They’re concerned that the 157-acre gravel pit and asphalt plant will affect their watershed, wildlife, property values and standard of living since a 2021 law removed regulations that would have limited noise and other pollution and held the pit’s operation to daylight hours.

After almost 180 people submitted comments to DEQ - the department wouldn’t hold a public hearing - DEQ approved the permit on April 3.

That started a clock ticking. Anyone wanting to make a legal challenge has 60 days to file a complaint in the courts, so Friends of the Jocko has until June 2 to decide what to do.

“We kinda hate to take that route. It’s expensive and can set precedent for other projects, good or bad. It could affect a lot of other communities as well,” Shelley Fyant, Friends of the Jocko founder and former CSKT chairwoman, told Montana PBS in April.

On May 8, Friends of the Jocko held a community meeting to update Arlee residents on the situation and learn what they thought.

“Folks were pretty much unanimous that they are willing to challenge the DEQ on their decision to allow the permit and to work to raise funds to do that,” said Jim Coefield, Friends of the Jocko president. “So that’s what we’re doing.”

The GoFundMe site - “Buddha Garden Under Threat, Stop the Mine” - was created on behalf of Friends of the Jocko by supporters of the Garden of One Thousand Buddhas, which is about a quarter-mile from the gravel pit. So far, the site has raised about $1,000 of its $8,000 goal.

The Garden hosts a Peace Festival every fall that could be jeopardized if the gravel pit goes into operation, according to the appeal. It adds that donations “will not only be helping to preserve our precious tranquility but potentially help OTHERS going forward.”

Missoula law firm Ferguson and Coppes has been advising Friends of the Jocko for the past few months and will file for the group.

“They feel very strongly that DEQ definitely violated, if not the letter of the law of (the Montana Environmental Policy Act), then the spirit of it,” Coefield said.

The Montana Legislature passed the 1971 Montana Environmental Policy Act following in the footsteps of the 1969 National Environmental Policy Act. Both gave the public the right to be notified of government actions that could affect the environment and created a public process to give citizens a say in what the government does.

However, in recent years, politicians, mostly Republicans, have worked to reduce the amount and influence of public input that departments allow on state projects, making it harder for citizens’ groups to challenge state decisions.

The 2023 Legislature, on mostly party line votes, rushed to pass Senate Bill 557, which further eroded MEPA’s provisions allowing citizens to challenge the government. It requires groups like Friends of the Jocko that are challenging a state permit to pay agencies to compile related records and pay a bond to cover revenue lost if the project is stopped and to file for a preliminary injunction to stop the project before the case proceeds.

Sometimes groups might not plan on asking for an injunction, so the requirement adds to the cost, because the legal bar for an injunction is high, requiring that the plaintiff prove early, before legal discovery is begun, that they’ll likely win in court.

Gov. Greg Gianforte signed SB 557 on May 19. But that creates a gray area for Friends of the Jocko. Because they began their administrative challenge of the gravel pit before the bill became law, they’re going to ask the judge whether they might be grandfathered under the previous version of MEPA and not have to meet the requirements of SB 557.

“We’re not fully apprised of what the law will require the judge to do in our instance,” Coefield said. “That will be the first thing that we have to work out. If the court decides they are going to apply the changes to us, then we have some Constitutional challenges against (SB 577), because this pay-to-play notion is clearly in violation of our right to participate.”

If Friends of the Jocko has to challenge SB 557, there are a number of other groups and law offices who have indicated that they would file amicus briefs in support of the challenge, Coefield said.

It’s uncertain when Riverside Contracting will begin digging. In April, Riverside Contracting told KPAX News in an email that it doesn’t have any immediate plans to begin operations at the site. It was permitted to “preserve our ability to provide competitive bids to the State of Montana for future highway projects along US Highway 93 in the Jocko Valley.”

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.

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