Judge closes Elbow Lake gravel pit while appeal proceeds
Laura Lundquist
(Missoula Current) A Missoula County judge has found the Department of Environmental Quality didn’t do its job when reviewing a gravel pit along the Clearwater River, so he shut the pit down.
On Tuesday, Missoula County District Judge John Larson granted a preliminary injunction stopping all operations at the Elbow Lake gravel pit near the Clearwater Game Range and Clearwater Junction.
Based upon testimony he heard on July 21, Larson found that DEQ had granted a dryland opencut permit without confirming whether surface and groundwater could be polluted or how many residents could be affected within a half-mile of the gravel pit.
“Tasked with managing Montana’s valued natural resources, it is imperative the DEQ act within the bounds of its authority. The plain language of the Opencut Act does not provide DEQ with discretion to categorically determine that a site will not affect groundwater when there is not scientifically reliable evidence to support that conclusion,” Larson wrote.
The DEQ and later the Department of Natural Resources Conservation each issued permits to gravel-pit operator LHC, Inc., to excavate a 21-acre piece of DNRC land near Elbow Lake and the Clearwater Game Range starting in mid-May. The timing of the permits coincided with the start of the Salmon Lake Highway Reconstruction Project where the asphalt would be used.
A group of Elbow Lake landowners formed Protect the Clearwater and filed an administrative appeal with the Montana Board of Environmental Review about a week after the final permit was approved. They argued that DEQ should have issued a standard opencut permit, not a dryland permit. The Board of Environmental Review oversees the DEQ but has no authority to stop a project while it’s being appealed.
When LHC started excavating on June 28, Protect the Clearwater asked the courts on July 11 for an injunction to prevent further damage to the area in the meantime. Larson signed a temporary restraining order before granting this injunction.
During the July 21 hearing, DEQ employees testified that they had relied on the information in the company's application to grant a dryland rather than a standard opencut permit. A dryland permit allows for an abbreviated environmental review and quicker approval. But to qualify for a dryland permit, the gravel pit can’t affect surface or groundwater and there can’t be more than 9 inhabited dwellings within a half-mile of the pit.
According to DEQ's environmental assessment, in the early stages of excavation, sediment-filled runoff during rainstorms could pollute Elbow Lake but DEQ said it wouldn’t be long-term. Then, as the pit became deeper, DEQ said water would pool in the pit and filter into the ground. Hydrogeologist David Donohue said that water could carry petroleum and other chemicals into the ground with it, which could pollute the household wells of Elbow Lake residents.
Donohue testified that DEQ should have conducted a hydrologic study of the site, because the older well data the DEQ had accessed was unreliable and then DEQ didn't verify the data. Also, while LHC intended its gravel pit to be 20 feet deep, it had drilled its three test holes down to only 14 feet. So there was no reliable proof that the pit wouldn’t affect groundwater, Donohue testified.
DEQ attorneys argued that the pit would have to intersect the water table to affect it. But the law doesn’t say that, so Larson turned to the dictionary definition of “affect.”
“Adopting this definition, then, means that a pit must merely have an influence on groundwater or surface water, and not that it ‘intersects’ it. Based on the testimony provided, it is patently clear that neither DEQ, nor the permittee LHC know the answer to this question. This in and of itself provides this Court with the evidence necessary to find that Plaintiffs are likely to succeed on the merits,” Larson wrote.
Because of a recent Legislative change, Larson had to meet four requirements to be able to grant the injunction, one of them being that the plaintiffs’ case will likely succeed on its merits. The other requirements for an injunction are that the plaintiffs will suffer irreparable harm, that the balance of the harms tip in the plaintiffs’ favor, and that the injunction is in the public interest.
LHC tried to argue it would be harmed because hauling asphalt from their other gravel pit 25 miles away would cost more. But Larson pointed out that LHC had bid the contract using that assumption.
So Larson had no difficulty justifying the last three requirements, partly because of Montana’s Constitutional right to a clean and healthy environment and because the U.S. Supreme Court ruled that “the balance of harms will usually favor the issuance of an injunction to protect the environment.”
“Furthermore, the mine at issue is situated above the banks of one of Montana’s most pristine rivers and just above a pristine lake. Home to numerous endangered species, the Clearwater River - a tributary to the Blackfoot River - is a treasure not just for the citizens of Missoula County, but to all of Montana’s people,” Larson wrote.
Polluting aquatic habitat that contains threatened bull trout and running wildlife out of an area where much has been done to conserve wildlife amounts to irreparable harm. Larson said that while DEQ noted in its environmental assessment that several species of wildlife are present in the area, the department didn’t look at how the pit might affect them nor did DEQ consult with Montana Fish, Wildlife & Parks.
“Enjoining LHC from continuing destruction under DEQ’s permit is necessary to protect the environment and water resources from degradation, but also to protect the public’s interest in holding its administrative agencies accountable,” Larson wrote.
Larson set a hearing for the end of August on whether the plaintiffs have to put up a bond to reimburse LHC should the plaintiffs eventually lose the case.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.