Waiting on gravel pit appeals, Elbow Lake group requests reseeding

Laura Lundquist

SEELEY LAKE - Low rain clouds subdued the Clearwater River valley Saturday as a handful of cabin owners turned off Highway 83 onto the dirt road leading down to Elbow Lake. They’d come to see if the state had followed through with a small promise: the reseeding of a mined area.

Walking a few hundred yards north through tall ponderosa trees, - and passing a sign announcing the land was part of the Blackfoot-Clearwater Game Range - their mood was also subdued as they came to a clearing where a few acres of native vegetation had been reduced to bare dirt and cobble.

This was where a Kalispell gravel company, LHC, Inc., had begun to dig a 21-acre gravel pit on state land after the Department of Natural Resources and Conservation agreed to issue a permit in mid-May. The asphalt produced was intended for the Salmon Lake Highway Reconstruction Project, scheduled between now and October 2024.

After starting work on June 28, the company had completed just a few weeks of excavation before a Missoula County judge shut the pit down. The company already cut down some large ponderosa pine estimated at around 120 years old.

The nonprofit Protect the Clearwater had filed for an injunction on July 11 and Missoula County Judge John Larson ruled that the Department of Environmental Quality had granted a “dryland” opencut permit to LHC without confirming whether surface and groundwater could be polluted or how many residents could be affected within a half-mile of the gravel pit.

So the nascent gravel pit has sat exposed since mid-July while Protect the Clearwater has pursued legal challenges. The prospect of weeds and erosion worried Jerry Covault, a retired 30-year Forest Service employee, who has a cabin just upstream of Elbow Lake on the Clearwater River.

On Sept. 18, Covault wrote letters to Gov. Greg Gianforte and DEQ Director Chris Dorrington, asking that the site be rehabilitated to prevent weeds from moving into what used to be a healthy natural site. He said crews needed to eliminate the berms and re-spread the exposed dirt to restore the topography and then reseed the area with native plant seeds by fall.

“If nothing is done to rehabilitate the site now, the damage to vegetation, soil and water will not heal itself for many decades, if ever,” Covault wrote in September. “We must take care of the land for the well-being of this and future generations of people, wildlife and our valued way of life.”

Weeks went by.

Then on Oct. 27, Covault got a response from Dorrington saying LHC, DEQ and Protect the Clearwater had reached a stipulation on Oct. 23 that allowed for reseeding the berms to prevent erosion by Nov. 3. Covault joined cabin owners Gayla Nicholson and Jeff Dickerson, and Jon and Lori Watson on Saturday to confirm the reseeding had been completed. It had.

“Part of the permit is to stabilize the topsoil. But as far as spreading the top soil and reclaiming it, they’re not interested in talking about that now,” Watson said.

It’s uncertain how long the berms and gouged area will remain. Protect the Clearwater received its injunction on Aug. 8, but now, it’s having to conduct its challenge of DEQ’s permit on two fronts.

One challenge filed May 26 is working its through administrative channels to the state Board of Environmental Review, an governor-appointed board which oversees DEQ. An administrative objection has to be completed before parties can move into a lawsuit. But the board doesn’t have the authority to stop work, so Protect the Clearwater had to request an injunction from the courts. Meanwhile, the injunction is now on its way to the state Supreme Court after DEQ and LHC appealed Larson’s ruling and asked that Larson be removed from the case.

“Our attorneys asked - since it’s been appealed to the Supreme Court - how about we stay the (BER) activity and save the taxpayers time and money until the Supreme Court weighs in? Because what the Supreme Court says is going to make a difference in the BER,” Nicholson said. “The mining company and the DEQ said no, we oppose that. So here we are, taking depositions and paying hydrogeologists to be deposed by the DEQ. So we’ll end up arguing our point in two different state venues.”

Protect the Clearwater’s position is DEQ should have issued a standard opencut permit, not a dryland permit. With dryland permits, there’s no requirement to analyze mining effects on surface or groundwater because there isn’t any water. But hydrologist David Donohue testified that DEQ doesn’t know whether water is present or not because the well data presented in LHC’s assessment was questionable. And below a steep slope near the gravel pit sits Elbow Lake and the Clearwater River.

The 2021 Legislature passed House Bill 599, which created the streamlined dryland permits and cut several environmental protections out of the requirements for even standard permits, as part of the Gianforte administration’s “Help Cut Red Tape” initiative to strip down state regulations and speed up permit approval for a wide variety of industrial projects.

The result is gravel pit permits are being churned out in several areas across the state where concerned neighbors are saying they received little notice and their concerns aren’t being considerd - Libby, Arlee, Elbow Lake, Helena, Shepherd and the Madison Valley, to name a few.

“For every inch of red tape that they removed for the folks who have an interest in mining an area, they added a mile of sticky red tape for the rest of us,” Nicholson said. “We had a milestone decision, but we need to stick with it, because we haven’t won the war yet. That’s the message: it’s not over.”

Since the Board of Environmental Review meets only every six to eight weeks, it’s uncertain when the board might get to Protect the Clearwater’s objection. The agenda for December’s BER meeting is already set, and the next meeting isn’t until late-February. Queries set to Board Secretary Sandy Moisey Scherer weren’t returned by press time.

It’s also uncertain when the Montana Supreme Court will hear DEQ’s appeal.

Pausing at a patch of dirt darkened by an oil spill from the excavation equipment, Watson wondered why LHC was fighting so hard when it has another gravel pit approved in July 2021 that’s 25 miles away on private land near Brown’s Lake and Ovando. That’s where the gravel for the highway project is currently coming from.

“Rather than go back and apply for the standard permit and go through it again, I think they’re fighting on the principle of HB599 being able to have the dryland permit,” Watson said. “My fear is that if (the permit) gets vacated, (LHC will) just walk, and it’ll be a fight to get it reclaimed. The bond could be used to do it, but DEQ would have to be of a mind to use the bond money to do that.”

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.