DEQ must redo analysis of proposed Clearwater gravel pit, Missoula judge orders

The Montana Department of Environmental Quality violated environmental and public participation laws last year when it awarded a permit for a proposed gravel pit and asphalt plant near the Clearwater River, a Missoula judge ruled last week.

District Judge Leslie Halligan’s order amounts to a major victory for Protect the Clearwater, a group formed in opposition to the proposed gravel pit, and orders the DEQ to redo its analysis of the potential impacts of the mine. More broadly, the ruling also affirms the agency can’t skip an analysis required by the Montana Environmental Policy Act (MEPA) when issuing mining permits.

“This is a victory for every Montanan who depends on clean water and healthy ecosystems,” Gayla Nicholson, with Protect the Clearwater, stated in a press release Monday. “We will continue to defend the Montana Constitution in the next round of briefings and stand up for the environmental laws that protect us all.”

The agency plans to appeal the decision, DEQ spokesperson Madison McGeffers wrote in an email Monday. She declined to comment further, citing agency policy to not comment on ongoing litigation.

Shortly after the agency approved the permit in 2023, the group sued in Missoula County District Court, asking a judge to block the gravel pit from moving forward. Contracting company LHC Inc. wants to mine gravel on 21 acres of state land northwest of Clearwater Junction between Elbow Lake and Highway 83.

Over a planned 17-year lifespan, it would remove 110,000 cubic yards of sand and gravel from the Clearwater State Forest, which is managed by the state Department of Natural Resources and Conservation.

Ruling in favor of the plaintiffs, Halligan found the agency failed to comply with the Montana Environmental Policy Act, “resulting in an incomplete compilation of data and an inadequate environmental review.”

By relying on a state law that limits the DEQ’s timeline for approving permits for gravel pits, the agency failed to uphold its responsibility under the Montana Constitution to provide for a “clean and healthful environment,” the judge found.

Contracting company LHC Inc. had applied in March 2023 for a dry-land permit to mine gravel on 21 acres of state land south of Salmon Lake. The proposed gravel pit would be adjacent to the Blackfoot-Clearwater Wildlife Management Area. The company also joined the lawsuit as an intervenor for the DEQ.

Dry-land permits are a type of opencut mining permit designed to give expedited reviews to low-impact surface mines that won’t affect surface or groundwater and that have few nearby residences. Under the Opencut Mining Act of 2021, the DEQ must either deny or issue those permits within 35 days of receiving a complete application.

In court filings and during a hearing in Halligan’s court last year, attorneys acknowledged that timeframe is hardly enough for the comprehensive environmental reviews that can be required under MEPA. But the mining law doesn’t prevent the agency from pausing a project if it finds more analysis is needed, Halligan wrote, and instead the DEQ “manufactured a conflict” between the time constraints and its constitutional duties.

“Where a statutory provision is susceptible to an interpretation that conflicts with a constitutional mandate, the statute must be construed in a manner that preserves constitutional requirements,” Halligan wrote.

The judge also found the agency got the law wrong when it stated it wasn’t able to hold a public meeting for the type of opencut mining permit the company sought.

Rather, state law instructs agencies to decide whether to hold a public meeting based on the “complexity and seriousness” of potential environmental impacts and the level of public interest. The DEQ’s failure to do so denied Protect the Clearwater its opportunity for informed public participation, Halligan wrote.

During a hearing in Halligan’s court last year, attorneys for Protect the Clearwater argued a more robust environmental review could have taken in a wealth of public comments and testimony on the potential impacts of the project. The agency would also have conducted its own analysis of possible impacts, rather than relying only on information from the applicant, and that information would have been put out for public review and comment before DEQ made a final decision.

Barring a successful appeal by the agency, the judge’s order will require DEQ to conduct that deeper analysis.

But the judge did not rule on the Protect the Clearwater’s request for an injunction and to vacate the permit. Halligan requested additional briefs from the parties on that motion. But she also allowed for the environmental group to seek emergency relief if LHC Inc. begins mining operations under the permit.

The order did not immediately set a deadline for those additional briefs.

This article has been updated to correct a reference to Protect the Clearwater, the name of the group suing the DEQ.