Judge nixes Blackfoot Clearwater gravel pit permit

Laura Lundquist

(Missoula Current) A Missoula judge has ruled that a Blackfoot Valley gravel pit permit should be completely eliminated.

Last week, Missoula County district judge Leslie Halligan ruled that the Montana Department of Environmental Quality must negate the permit it issued for a gravel pit near the Clearwater River and Elbow Lake.

In April, Halligan found that DEQ had violated the Montana Constitution when it failed to do a thorough environmental review of the 21-acre gravel pit on state land near the Blackfoot-Clearwater Wildlife Management Area and didn’t allow adequate public participation. But she allowed for further legal arguments over whether the permit should be withdrawn completely or just until DEQ completes an environmental impact statement or until a possible appeal to the Montana Supreme Court is complete.

After those arguments were submitted by mid-July, Halligan said the law supports the former, so that no activity can take place at the pit until the issue is resolved.

“The Court’s (summary judgment) order establishes that, absent effective relief, the constitutional violations identified therein will continue to cause irreparable harm. The Court further finds that preventing the continued operation of a permit issued in violation of those constitutional requirements serves the public interest,” Halligan wrote in her Sept. 22 ruling.

Halligan also rejected DEQ’s claim that it was not required to pay the fees for the court or the attorneys for the plaintiff, Protect the Clearwater, saying the law “authorizes costs and reasonable attorneys’ fees for a person who prevails in an action enforcing the constitutional right to participate in governmental operations.”

“We are grateful to everyone who has stood with Protect the Clearwater throughout this long effort,” said Protect the Clearwater President Gayla Nicholson. “This decision reinforces why citizen participation matters. Protecting Montana’s water, wildlife and communities requires transparency, accountability and a public process that respects the rights guaranteed to all Montanans.”

In May 2023, DEQ issued an opencut mine permit to the construction company, LHC Inc., for a gravel pit on 21 acres of state land near Elbow Lake and the Blackfoot-Clearwater Wildlife Management Area. After receiving short notice, Elbow Lake neighbors rallied to create a grassroots organization, Protect the Clearwater, to stop the digging and challenge the permit through an administrative process with the Board of Environmental Review and in the courts.

Throughout the process, DEQ claimed that a 2021 Legislative change to its permitting requirements kept the department from having enough time to conduct a thorough environmental analysis.

The 2021 Legislature passed House Bill 599, which modified the Opencut Mining Act to create an abbreviated permitting process for gravel pits on land that are “high and dry,” which wouldn’t affect surface or groundwater. The new dryland process allowed DEQ very little time: 5 days to review an application and 30 days to approve it, as long as the application is complete. As a result, DEQ conducted less analysis on multiple gravel pits, relying mostly on information provided by the applicant.

But in April, Halligan said the Montana constitution’s right to a clean and healthful environment, along with related aspects of the Montana Opencut Mining Act, gave the department full legal recourse to do what was necessary to ensure environmental protections, regardless of any legislative time constraints imposed after the fact.

“Rather than fulfilling this continuing obligation, DEQ manufactured a conflict between the statutory time constraints and the (Opencut Mining Act) constitutional purpose, and then resolved that contrived conflict by subordinating the Montana Constitution,” Halligan wrote in her April ruling. “That the Permit was issued on the same day as the (environmental assessment) only underscores the absence of any meaningful review prior to approval of the Permit.”

Last week, the Halligan also determined the constitutional protections related to public participation went beyond the Protect the Clearwater case, extending to all Montanans who have an interest in meaningful participation in environmental permitting decisions and protection of Montana’s natural resources.

That could have a bearing on a number of gravel pit challenges around the state, including a possible gravel pit along the Blackfoot River a few miles east of Bonner that DEQ has yet to consider.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.