Judge hears arguments on Elbow Lake gravel pit

(Missoula Current) A Missoula County judge will decide by Friday whether a new gravel pit near Elbow Lake and the Clearwater Game Range can continue operations while the pit is being challenged.

On Friday afternoon, Missoula County District Judge John Larson heard more than three hours of arguments on whether or not he should place a permanent injunction on the Elbow Lake Project gravel pit and asphalt plant. Larson put a temporary hold on the gravel pit on Monday after a nonprofit organization, Protect the Clearwater, asked for an injunction the previous week.

Protect the Clearwater is a group of Elbow Lake landowners who are opposing the Department of Environmental Quality and gravel pit operator LHC, Inc., for issuing a dryland opencut mining permit for the 21-acre Elbow Lake Project. The project is being developed on state land, but the Department of Natural Resources Conservation is not one of the defendants.

The defendants’ attorneys started off telling the judge that he shouldn’t even consider an injunction because the plaintiffs are required to show that they would likely win the case but they haven’t done so. DEQ attorney Jeremiah Langston said the plaintiffs claim DEQ has violated the Montana Environmental Protection Act but the plaintiffs themselves haven’t followed the act. The plaintiffs have filed a complaint with the Environmental Board of Review, which oversees DEQ, and that should play out before the issue is brought to the courts, Langston said.

Langston cited Senate Bill 191, passed by the 2023 Legislature, which changes how judges can issue permanent injunctions, making it harder for plaintiffs to get one. The bill had been requested by the State Attorney General’s Office.

“Plaintiffs’ request for relief is unprecedented. Plaintiff fails to identify any other case where similar relief circumventing normally viable due process has been granted by a course,” Langston said. “Indeed, plaintiffs may seek similar relief under MEPA, and yet, they decline to utilize the relief available to them.”

In answer, Protect the Clearwater attorney Graham Coppes told Larson that MEPA didn’t apply because the opencut permit was wrongly issued to begin with. By issuing a dryland permit instead of a standard permit, both DEQ and the applicant, LHC, failed to take a hard look at how the gravel pit could affect either surface or groundwater. The permit would be good until 2040.

“The evidence I will present to the court today will show that the petitioners are likely to succeed on the merits of the administrative challenge to the DEQ permit issuance, because no one, not the applicant nor DEQ, conducted the necessary analysis to determine whether the project permit was appropriate,” Coppes said.

The defense brought two main witnesses: DEQ Reclamation Specialist Ruby Hopkins and LHC project manager Frank Tavish.

Hopkins went into detail on how she reviews applications for opencut permits, a process that must be completed in 15 days for dryland permits. House Bill 599, passed in 2021, shortened DEQ’s approval processes and eliminated several environmental safeguards.

When asked why she chose to issue a dryland permit for the Elbow Lake project, Hopkins said the applicant - LHC - certified that the pit was sufficiently distant from surface and groundwater. The closest pond to the south is 650 feet away. Hopkins said she visited the site in April and saw no standing water.

When Tavish was on the stand, he said he reviewed the state’s environmental assessment and used a DEQ worksheet to choose to apply for a dryland permit. Coppes said that was problematic.

“You signed a certification saying groundwater would not be affected but relied only on the state of Montana study for this determination,” Coppes said. “Did you hear (Hopkins) say she took your certification as the basis for the dryland permit being appropriate? It sounds like you’re relying on them and they’re relying on you.”

The plaintiffs then called hydrogeologist David Donohue to the stand. He worked with DEQ in the 1990s as a subcontractor on gravel pits.

Donohue said the state’s environmental assessment used well data from the Montana Ground Water Information Center but did nothing to verify the location of the wells or ground-truth the groundwater levels. Donohue said some of the well locations are inaccurate, and there’s a great deal of variability in the water levels in the wells. One well has a water level 5 feet below the surface, which would mean that mining would affect groundwater. Other wells have deeper water levels. And water level can depend on the time of year and whether they’re near artesian springs.

That introduces enough error that no professional hydrogeologist would use the data and certify that groundwater would not be affected without doing some on-site verification first, Donohue said. To ensure groundwater wasn’t affected, other wells should be installed and monitored to determine the static water level, Donohue said.

“I don’t know if (the data) is accurate. Neither does DEQ or DNRC,” Donohue said. “The data that was used to look at groundwater elevations is questionable. It could be used, but it would need to be field verified.”

The plaintiffs’ attorneys also called John Watson and Gayla Nicholson to the stand to testify as residents of Elbow Lake. Both had DNRC cabin leases at the lake and both recently bought their property from the DNRC without knowing there might be a gravel pit out their front doors.

Watson just built his cabin last fall and moved in but the dust from the gravel pit is agitating his breathing problems. Nicholson recently retired and was planning on spending more time at Elbow Lake but is worried about the effects of the noise, dust and asphalt emissions and whether her household well might be affected, so she sent comments to the DEQ.

“It struck me that in almost every instance, the impact to people and wildlife were considered to be ‘temporary,’ ‘short-term’ and ‘negligible’ - words that indicate that the mine wouldn’t impact the surrounding area. I’m going to turn 65 next week - 17 years is not negligible or temporary in my mind,” Nicholson said. “I’m really worried about the river and how anything uphill from us can end up in the Clearwater River. DEQ’s job is to protect a clean and healthy environment and public health, but it didn’t appear to be part of this process.”

Larson said he would make a decision on the injunction by Friday.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com