Judge: DEQ’s abbreviated gravel pit permitting is unconstitutional
Laura Lundquist
(Missoula Current) Saying the Montana Department of Environmental Quality abused its discretion when granting a gravel pit permit without thorough review or public participation, a Missoula County judge’s ruling could have implications for several gravel pits approved since 2021.
On Thursday, Missoula District judge Leslie Halligan issued her ruling that DEQ failed to uphold the Montana Constitution when it conducted a minimal investigation prior to issuing an opencut mine permit to LHC in 2023 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 both 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 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’s) constitutional purpose, and then resolved that contrived conflict by subordinating the Montana Constitution,” Halligan wrote. “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.”
DEQ also cited time constraints and legislative changes related to the new category of dryland permits as reasons why it couldn’t hold public meetings - the changes authorized public meetings only when the developer asked for one - or provide adequate public notification.
Again, Halligan said DEQ violated the Montana Constitution, this time related to the right to know and the right to participate, which entails more than just the ability to submit a comment. The law requires DEQ to consider comments received in response to an environmental assessment and any public hearing must occur after an environmental assessment has been released and before the final decision. But issuing the permit the day the environmental assessment was released made it clear that DEQ had no intention of considering comments or holding a public meeting.
“While (the law) grants DEQ discretion to adjust public participation, it does not authorize DEQ to eliminate participation altogether or surrender its delegated authority to the regulated party. Accordingly, DEQ’s interpretation - that (the recent legislative change) prohibits it from conducting a public meeting and that it may adjust the level of public participation only at the operator’s request - is legal error and an abdication of its constitutional obligations,” Halligan wrote.
Further, the law requires DEQ to ensure that the public receives proper notice of a potential gravel pit instead of relying on the permit applicant, because “it is DEQ that bears the constitutional and statutory burden of preventing proscribed environmental harms and ensuring compliance.”
If DEQ was struggling to carry out its constitutional obligations due to the legislative timing changes, Halligan pointed out that the law requires DEQ to notify the governor and the legislative Environmental Quality Council of the problem so “a lawful resolution may be pursued.” Halligan said she expects DEQ to avail itself of this process.
Finally, Halligan agreed with Protect the Clearwater attorney Graham Coppes that DEQ violated the Montana Environmental Policy Act when it used a cookie-cutter environmental assessment checklist to evaluate the area for the proposed gravel pit. MEPA requires DEQ to take “a hard look” and the environmental assessment was anything but, according to the ruling.
DEQ didn’t consider all the data showing that the area is an important wildlife corridor for several species including grizzly bears, even though its sister agency, Montana Fish, Wildlife & Parks, compiled the data. DEQ didn’t analyze the groundwater and how it might affect or contaminate surface water, even though multiple wells were available. And the department almost completely ignored any effect on bull trout in the nearby Clearwater River, saying only that the project “was not expected to impact water quality.”
DEQ argued that the court should give the agency deference when it comes to permitting and environmental expertise. Halligan agreed, but only up to a point.
“However, deference presupposes that the agency actually exercised that expertise, that it examined all the relevant data and articulated a rational connection between the facts found and the choices made,” Halligan wrote. “Where, as here, the agency’s conclusion is contradicted by its sister agencies, unsupported by the scientific record it complied, unexplained in the face of contradictory evidence, and premised on a data source that disclaims its fitness for the purpose to which it was put, the decision is not the product of reasoned analysis deserving deference.”
As a result, Halligan said she would direct DEQ to prepare a full environmental impact statement, which includes full public participation. But she didn’t vacate the mining permit, saying she’d wait on further review.
It’s too early to know whether DEQ will appeal Halligan’s ruling. But several gravel pits around the state, including the one proposed outside Arlee near the Garden of a Thousand Buddhas, were permitted using the same unconstitutional process. So Halligan’s ruling could require DEQ to have to reassess those permits. Meanwhile, some land along the Blackfoot River a few miles east of Bonner might be poised to start the permitting process, but now those neighbors might have more opportunity to weigh in from the start.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.