Correction: This story is now correctly updated with the correct name of Missoula District Judge John Larson. The story incorrectly said Don Larson in an earlier version
A newly-formed nonprofit launched two separate legal challenges against the state of Montana’s decision to approve an open pit gravel mine last month, setting up potential court dates that could revoke the builder’s permit.
Protect the Clearwater is a newly-formed nonprofit with the main purpose of stopping the new gravel mine. It filed a complaint in Missoula County District Court in June arguing that the state violated Montana’s Right to Participation, the Montana Environmental Policy Act and Montana’s Right to a Clean and Healthy Environment.
This comes as construction crews broke ground on the new 21-acre open-pit gravel mine and asphalt plant between Elbow Lake and the Seeley Lake Cemetery last week.
After the Department of Natural Resources and Conservation approved LHC construction’s permit for the site in April, it could be used for up to 17 years. The site will create asphalt for the Salmon Lake road project and potentially more infrastructure projects as needed.
The space is nestled between a patchwork of land use. Montana Fish, Wildlife and Parks owns roughly 50 acres to the north to maintain wildlife migration patterns. The Blackfoot-Clearwater wildlife management area sits to the east.
The site sparked controversy this spring from residents of the area, who say the pit will harm wildlife passing through the area, spread harmful dust particles and become an eyesore for those driving by Highway 83.
The area was deemed important by the Missoula County Commissioners in 2010 because of the “greatest potential resource protection on lands with the highest values for biodiversity, fish and wildlife habitat, forest production, recreation, wetlands, and other resources.”
The state approved the Aggregate Take and Remove and Open Cut Mining permits through the DNRC and the Department of Environmental Quality, respectively. The project sits on Montana State Trust Lands, which acts as a funding mechanism for education programs. Revenue from the permit will go to the Pine Hills School in Miles City.
Through its environmental assessment, the state ultimately decided a new gravel pit closer to the construction in Seeley would be more environmentally friendly than trucking asphalt from the next closest gravel pit in Ovando, which would add 47 miles to each truck’s
roundtrip.
“It is found that an estimated 1.1 billion grams or 1,110 metric tons of additional CO2 would be emitted by selecting the No Action Alternative,” The DNRC said in its checklist environmental assessment. “Furthermore, it should be noted that the numbers described above only pertain to a single reconstruction project in the area occurring in 2023, additional emission savings may also be achieved by the utilization of the action alternative’s site for future projects.”
To address environmental concerns, LHC Construction will have to build berms to limit groundwater runoff and dust carried from the facility. The pit also must bring water in to not compromise water rights or pollute neighboring wells. The application is based off of a dryland permit, which should not interfere with waterways or water quality.
The gravel pit currently cannot operate at night, but can be changed by a request from LHC. It is only meant for infrastructure projects.
The DNRC said in its environmental assessment that minimal impacts will happen to wildlife and water in the direct area, but those should be resolved immediately with the closing and rehabilitation of the site.
In the DEQ environmental assessment, the state said any impacts would be minimal and just during the duration of the mine’s operation.
“The land proposed to be disturbed does not contain unique, endangered, fragile, or limited environmental resources. The surface disturbance would be reclaimed by December 2040, although the Applicant can apply to extend the reclamation date,” The decision read. “Impacts to local topography and the viewshed of nearby residents and visitors would be moderate and short-term.”
Residents in the area stood strongly opposed to the project, according to public comment on the environmental assessment. There are dozens of cabins on state lease land in the area of the mine. The closest, according to the DNRC report, sits 1,200 feet from the gravel pit.
The Clearwater River also sits roughly 1,200 feet from the mine and about 100 feet lower in elevation.
The Protect the Clearwater group argue in an 18-page lawsuit that the state should revoke the permits given to LHC because of the limited time to comment on the project and that the state’s environmental assessment was inadequate.
“The ‘analysis’ in the (environmental assessment) is woefully inadequate and superficial,” the lawsuit says. ”DEQ incorrectly assumed that the dryland application was appropriate, and accordingly limited the review of water quality issues. While the permit will allow the gravel mine to operate 24 hours a day, seven days a week for 17 years (through December, 2040), the EA concludes that ‘the severity, duration, . . . and frequency of the occurrences of the impacts. . . would be limited.’ The review of potential impacts to water quality, as well as to the economy of the area that depends on the water quality (including recreation-based second homes) is minimal, and analysis of the impact of the proposal on wildlife is nonexistent despite the presence of a major state game range next door. In short, DEQ’s review is not entitled to deference, as DEQ completely failed to take the requisite hard look at the proposal’s environmental impacts.”
The state has not responded to the suit yet. The case is being sat by District Judge John Larson. No hearings have been set for the matter
The second challenge by Protect the Clearwater will go through the Montana Environmental Review Board. The review board has its own venue to oversee environmental decisions by the state. Its next meeting will be on Aug. 11 at 9 a.m.
“Protect the Clearwater wants the DEQ Board of Environmental Review to take a harder look at the risks to the Clearwater River and require a thorough hydrogeologic study to verify that groundwater will not be harmed by the mining and asphalt operation,” a statement from the organization forwarded by Board President Gayla Nicholson said.
The group wants the DEQ to consult with the agencies knowledgeable about wildlife management and endangered species, like grizzly bears, and conduct a more thorough evaluation on impacts to local fish and wildlife.
Protect the Clearwater is also requesting that DEQ switch the dryland permit issued to LHC to a standard permit for open cut mining. Nicholson said that the standard permit would allow the public more representation, and cited Montana House Bill 599 passed in 2021 for reducing the public right to know.
The law now only requires a public meeting if there are 10 or more owner-occupied dwelling units within a half-mile of the boundary of the dryland permit. And then, at least 51% of the owners must request the meeting.
No public meeting would be held if that threshold wasn’t met, which was the case of the Elbow Lake project.
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