In a recent Montana Supreme Court ruling, the temporary restraining order against LHC, Inc. a company that applied for an opencut mining permit for mining gravel on Highway 83 near Elbow Lake, was rescinded.
The decision was made due to a technical difference between the state Supreme Court and District Court Judge John Larson, who originally set the restraining order in July 2023.
The restraining order was applied for in the Fourth Judicial District Court, which includes Missoula County, by Protect the Clearwater, a local grassroots group formed in response to the proposed gravel mine, on July 11, 2023 after LHC began preparing the site for mining by cutting down old growth trees and using heavy equipment to excavate, strip topsoil and build roads.
According to PTC, there was no preemptive way to legally stop the gravel mine before work started.
On Aug. 8, 2023 Judge Larson of the Fourth Judicial District Court ordered the injunction to remain in place until the appeals to the Bureau of Environmental Review (BER) and the Montana Environmental Protection Act (MEPA) were both settled. BER is a group of citizens appointed by the governor to oversee Montana’s Department of Environmental Quality.
The recent ruling was triggered when LHC and DEQ filed an appeal of Judge Larson’s decision to the Montana Supreme Court on Sept. 20, 2023.
“The Supreme Court avoided addressing most of the issues we have raised, instead focusing on the technical difference between general legal rules and new rules specific to MEPA,” Gayla Nicholson, Protect the Clearwater board member, said. “The merits of our argument were not addressed and, therefore, the ruling does not affect the cases before the Board of Environmental review or the MEPA complaint in the Fourth District Court.”
PTC requested a review of the DEQ permit based on inadequacy of public notice and inadequacy of the water quality analysis.
Other concerns still awaiting decisions include one by BER and the Fourth District Court regarding the application of MEPA towards the DEQ process for the gravel mine application.
With the restraining order lifted, LHC could begin developing the gravel mine at any time.
“There’s only a certain kind of gravel that can be used for road work,” David Smith, executive director of the Montana Contractors Association, said. “It’s part of our industrial society to need gravel.”
Across Montana groups are challenging House Bill 599, the legislation passed in 2021 that revised opencut mining laws and provided for less stringent application processes for certain types of opencut mining, which PTC is challenging. Opponents like the Gateway Conservation Alliance in Gallatin County are bringing DEQ to court as well.
GCA said that HB 599 eliminated DEQ’s duty and ability to review proposed opencut mining operations for environmental harms, including surface and groundwater quality, as well as removed public participation opportunities. The result, according to GCA, has turned the opencut mining act’s permitting process into a “meaningless form-filling exercise.”
GCA said HB 599 violates the Legislature’s duty to provide for adequate remedies and administration to maintain and improve a clean and healthful environment, a right provided in Montana’s Constitution.
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