Judge rules against state in Elbow Lake gravel pit case

A Missoula County District Court Judge ruled Aug. 8 that the state of Montana failed to correctly process the permit for the Elbow Lake gravel pit south of Salmon Lake.

The decision solidified the halt of work at the gravel pit, which has not been in operation since the nonprofit Protect the Clearwater sued for a temporary restraining order in July.

With the project sidelined, the Montana Environmental Review Board will make a final decision on the legality of the permit in the coming months.

The Elbow Lake Gravel Pit, which sits about 1,300 feet from the Clearwater River, was started by LHC construction in June to create a 21-acre asphalt plant for the Salmon Lake road construction just a few miles north.

LHC applied for the permit on Montana State Trust Lands owned by the Montana Department of Natural Resources and Conservation. The gravel pit permit issued by the state was a dryland permit, which has a faster application process and fewer regulations.

Judge John Larson wrote in a decision memo that the Montana Department of Environmental Quality did not do adequate testing of underground water nor acquire data on nearby residences to issue a dryland permit.

The land, situated between the Blackfoot Clearwater game range and 50 acres of Montana Fish, Wildlife and Parks land, has been used as a wildlife corridor for decades, Larson wrote. Grizzly Bears, Elk and Canadian Lynx are in the area, as well as the Bull Trout in the Clearwater River.

"The mine at issue is situated above the banks of one of Montana's most pristine rivers and just above a pristine lake," Larson wrote. "Home to numerous endangered species, the Clearwater River – a tributary to the Blackfoot River – is a treasure not just for the citizens of Missoula County, but to all of Montana's people."

Larson ruled that neither LHC or DEQ had tested groundwater deep enough below the site to ensure no environmental damage. The DEQ tested the site up to 14 feet, but the project's application said it would dig up to 20 feet below the ground.

Hydrologist David Donohue testified on July 21 that the ground water at the site could vary in depth and magnitude. Well depths vary from a hundred feet to less than 20 in the surrounding area, which Donohue said gives a general estimate of area groundwater.

Donohue added that the well data should not be used to make a decision on the project and that DEQ did not do enough testing for the permit. He testified that mining into the site could hit groundwater and cause significant environmental and health impacts from fuels contaminating the water supply.

Larson also wrote that LHC could not verify if less than 10 full-time residents lived within a half mile of the site - a requirement for issuing the dryland permit without holding a public meeting. LHC could not verify that data in court and the DEQ went off of LHC's first estimate.

Area resident John Watson also testified that the dust created from the gravel pit has been drifting into his property and the Clearwater River just 1,200 feet away. Watson said he has a respiratory issue that would be likely exasperated by the dust.

Larson not only ruled in favor of Protect the Clearwater because of environmental consequences, but also pointed out how LHC could be using a different gravel pit mine, which was originally the plan for the Salmon Lake road reconstruction.

"The applicant owns another private gravel mine a mere 25 miles away from the site in question," Larson wrote. "On its own admission and the findings of DNRC, it has access to those resources, but just wants this site as it is more convenient and could save fuel costs. At the hearing these costs were estimated at approximately $250,000."

LHC construction testified that the company could lose $1.4 million if the injunction is upheld, and also asked the judge to allow moving equipment out of the site to use at another location.

The Montana Board of Environmental Review will now look over the appeal. Expert witness testimony from all parties will be due to the board by Aug. 11. Rebuttal witness testimony will be due on Aug. 25, and the discovery phase of the case will close on Sept. 29.