Clearwater residents, state debate gravel pit permit in court
Laura Lundquist
(Missoula Current) Missoula County District Court judge Leslie Halligan heard legal arguments this week on whether the state should have to hear and consider public comments on gravel pits, particularly when the pits are near neighborhoods.
The plaintiffs, Protect the Clearwater, are fighting a gravel pit that the Department of Environmental Quality permitted between the Clearwater Wildlife Management Area and Elbow Lake near Clearwater Junction.
It’s another test of Montana’s Environmental Policy Act and the constitutional rights to know about and participate in governmental actions. Protect the Clearwater is saying the state didn’t give the public the opportunity to comment on the gravel pit proposal before the state approved it. If they had been able to comment, they would have been able to raise concerns about water and wildlife.
Also, the Montana Environmental Policy Act requires state environmental agencies to take a “hard look” by conducting a sufficient environmental analysis before approving projects like mines, said plaintiffs’ attorney Graham Coppes.
“The dryland permit categorically assumes no impact to water,” Coppes said. “But the hard look is required by MEPA, wholly independent of whatever substantive obligations they have under the Opencut Act. That’s critical. So what we’re saying is, because they used this categorically excluded type of mining permit, they really did very little to analyze the water quality impacts of this mine.”
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 allows 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 conducts less analysis, relying mostly on information provided by the applicant.
On April 27, 2023, DEQ approved the 21-acre gravel pit on state land after LHC, Inc., applied for a dryland permit in January. As revealed in testimony for a court injunction to stop the mining in July 2023, DEQ approved the request for a dryland permit based on information about water provided by the applicant, LHC, and did no further investigation. A hydrologist brought in by the plaintiffs showed interactions with groundwater could be a concern, but that’s not part of the official record.
Many of the people who own houses around Elbow Lake near the pit were unaware of the permit application until it was too late to send comments. HB 599 shifted notification responsibility to the permit applicant, not the state. Still, all 80 comments that were submitted later to the Department of Natural Resources Conservation were opposed.
DEQ attorney Jeremiah Langston argued that older court rulings - the 1979 Kadillak v. Anaconda Company - give DEQ leeway to sidestep environmental analyses if there isn’t sufficient time to complete them, and the new dryland permit law gives the agency only 35 days.
“MEPA requires the agency to contour its analysis to the substantive laws that set the statutory time frames. Not the inverse, that MEPA is dictating everything that happens,” Langston said.
Coppes countered Langstrom’s argument that DEQ didn’t need to do an analysis by citing more recent Montana Supreme Court rulings that say that is no longer the case.
“DEQ’s reliance on Kadillak as conclusive of its ability to conduct an environmental impact statement is no longer good law,” Coppes said. “The fact that they have obligations to act quickly does not preclude them from finding significance. That does make sense when you think about the fact that MEPA is implementing a fundamental constitutional right to a clean and healthful environment. If other statutes could usurp that potential, what would be left?”
When it comes to public participation, Langston said the law doesn’t require DEQ to solicit public comment, only to consider comments if they are solicited. In this case, DEQ didn’t solicit public comment because it’s not required with a dryland permit, Langston said. Litigants can’t use the constitutional right to participate as an argument unless they’re challenging a particular law that violates it, but Protect the Clearwater isn’t challenging the Opencut Act in this case, Langston said.
Protect the Clearwater is challenging the Opencut Mining Act in front of the Board of Environmental Review, which oversees the DEQ. That has to run its course before it can be brought to a district court.
Protect the Clearwater attorney Robert Farris-Olsen argued that DEQ had plenty of time to do an analysis, because it produced a supplemental analysis to look at threats to endangered bull trout after being challenged by the plaintiffs in court. Court documents also indicate DEQ had a draft environmental analysis prepared but it wasn’t provided to the public. If Montanans can’t read a draft assessment, they have no way to know what to comment on and there’s no way for DEQ to properly respond to their comments, as required by law.
“DEQ says, ‘We have discretion when to allow public comment.’ If you take DEQ’s arguments to its logical conclusion, DEQ’s the only entity that gets to decide when public participation is allowed,” Farris-Olsen said.
Both sides accused the other of hyperbole after LHC attorney Mark Stermitz said everything the plaintiffs said was “exaggeration and gloss,” because the record shows LHC followed the procedures outlined in the new dryland permit law. Coppes responded that DEQ’s claims that it did a thorough analysis were overstated.
Langstrom said that if Halligan rules in favor of the plaintiffs on MEPA, it would be limited to the remedy and the permit might be denied. But nothing changes the agency’s obligation under MEPA, Langstrom said.
Halligan said she would consider the arguments prior to making a ruling.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.