A Missoula County judge has blocked the construction of a gravel pit in the Seeley Swan Valley until legal challenges are resolved against the Montana Department of Environmental Quality, the state agency that issued a permit for the pit.
The decision issued Aug. 8 comes a few weeks after the same judge issued a temporary restraining order to halt activity on the 21.2-acre site near Elbow Lake on State School Trust Lands about three miles north of Clearwater Junction.
In his decision, District Court Judge John W. Larson said the nonprofit group challenging the development, Protect the Clearwater, was likely to succeed in court. The group filed a formal appeal with the state Board of Environmental Review and a lawsuit against DEQ alleging that it did not conduct a proper review of the proposed gravel pit, which, according to court records, could be open for 17 years.
Earlier this year, DEQ approved a “Dry Land Opencut Mining Permit” to LHC, Inc., of Kalispell, to establish the gravel pit. The pit was to supply gravel and asphalt for an ongoing Montana Department of Transportation road project on Montana Highway 83. But as work on the site was set to begin, nearby residents became concerned about the impact the pit would have, particularly to Elbow Lake and the Clearwater River. They were also concerned about noise and dust coming from the site.
A key complaint of Protect the Clearwater is that the state issued LHC a dryland mining permit instead of a standard mining permit. During the 2021 legislative session, a law was passed to streamline the permitting of gravel pits that are “high and dry” (meaning pits that don’t have an impact on ground or surface water) and are isolated from populated areas, defined as fewer than 10 occupied dwellings within a half-mile of the site. But Protect the Clearwater believes that the state should have applied more scrutiny to the project and that the public should have had more time to comment. LHC applied for the permit in March and received it about a month later.
During a hearing on July 21, representatives of DEQ testified that they had not done any of their own hydraulic work to confirm what LHC had put in its application. Ruby Hopkins, the DEQ employee who produced an environmental assessment for the project, testified that LHC was required to dig three test holes to ensure the development would not impact groundwater. However, those test holes were only dug 14 feet deep, even though LHC plans on digging at least 20 feet below the surface. Hopkins also testified that DEQ had not verified information provided by LHC stating that there were fewer than 10 occupied dwellings within a half-mile of the site, thus allowing the project to receive a dryland permit.
During the hearing, David A. Donohue, a hydrologist and expert witness for Protect the Clearwater, testified that the area surrounding the proposed pit is “characterized by complex hydrogeology” and that there could be significant variations in groundwater depth. Therefore, he said, the three test holes LHC dug were not enough to determine that the project would not impact water. Donohue was specifically concerned that diesel, gasoline and other fuels used as part of the mining could contaminate the groundwater. A local resident also testified that dust from the mine site, which had been active before the temporary restraining order was issued, was already being blown toward Elbow Lake and the Clearwater River.
“The Court concludes that DEQ and LHC have not met their burden to establish that the operation will not affect surface water or groundwater,” Judge Larson wrote. “As Mr. Donohue testified, the data relied on by the State and LHC is unreliable, at best. That coupled with the lack of ground truthing, or physical verification of onsite water, demonstrate that DEQ and LHC cannot certify that the operation will not ‘affect groundwater or surface water.’”
In court documents, LHC attorneys and employees said the company stands to lose more than $1 million if the gravel pit remains closed and has to be moved. In its brief opposing the temporary restraining order, LHC attorneys wrote that the company’s permit application was completed “by the book and to the letter.”
For now, however, LHC will not be able to use the pit until the legal challenges are resolved, something Judge Larson said would not happen before the end of this summer’s construction season.
This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.