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Clearwater gravel pit neighbors lose state Montana Supreme Court appeal
By Laura Lundquist - Missoula Current,
2 days ago
The Montana Supreme Court has ruled against an injunction that stopped a gravel pit near Clearwater Junction, saying the neighbors challenging the pit used the wrong law.
The Montana Supreme Court this week invalidated a Missoula County District Court injunction, siding with the Montana Department of Environmental Quality (DEQ) and LHC, Inc., the company that received a DEQ opencut mining permit to turn state land near the Blackfoot Clearwater Wildlife Management Area into a gravel pit.
But the Supreme Court’s ruling centers on a technicality, and the justices didn’t deal with the merits of the case.
Writing for the Supreme Court, Justice Judith Baker said the plaintiffs, Protect the Clearwater, should have filed for an injunction to stop the gravel pit using the process outlined in the Montana Environmental Policy Act, which is the law the plaintiff is using in a separate lawsuit to challenge DEQ’s permitting process.
Instead, Protect the Clearwater attorney Graham Coppes filed for the injunction under a different law — Title 27 — that covers general injunctions, a practice that used to be common. Coppes did that because he plans to challenge DEQ under the Opencut Mining Act, but Protect the Clearwater must take its case through an administrative appeal with the state Board of Environmental Review.
Only after an administrative challenge is exhausted can a plaintiff take an agency to court under the Opencut Mining Act. So Coppes was requesting an injunction without being able to file an associated Opencut Mining Act complaint.
But Baker said the 2023 Legislature had changed the Title 27 law to require a judge to assess four aspects, including whether the plaintiffs were likely to succeed on the merits of their case.
Missoula County District Judge John Larson ruled last year that the plaintiffs were likely to succeed on the merits of their administrative case before the State Board of Environmental Review. But Baker said Title 27 now requires there to be a lawsuit.
Baker said because of the change, Coppes should have followed MEPA’s injunction process because he filed a MEPA complaint; he included aspects of the MEPA case in his injunction arguments; and Larson’s injunction ruling “extended to DEQ’s MEPA analysis and rejected the (environmental assessment) on the basis of Protect the Clearwater’s expert testimony.”
“We conclude that the District Court improperly applied Title 27’s preliminary injunction provisions to Protect the Clearwater’s application when it had an available remedy for similar relief in its pending action challenging the agency’s environmental review of the same permit,” Baker wrote.
The Supreme Court set the ruling back to Judge Larson with instructions to dismiss the case.
“We were disappointed in the court’s decision, not because it identified the appropriate statute. The Legislature has made that confusing, and it makes it more difficult for environmental organizations to obtain relief. But the parties were all there at the Supreme Court, and everybody agreed that there was sufficient information to say who was right and who was wrong under either standard. And to not get an answer to that was just a total punt,” Coppes said. “It doesn’t recognize how much time, effort and money it takes to get a case before the court in the first place.”
Protect the Clearwater is a nonprofit organization created by the residents living near the gravel pit. On Wednesday, Protect the Clearwater President Gayla Nicholson said the organization was still pushing forward with its appeals at the Board of Environmental Review and in Missoula County District Court.
“We are disappointed in the ruling but intend to continue to move forward to ensure that Montana’s environmental laws are enforced to better protect the natural environment of the Clearwater River area,” Nicholson said. “Our position continues to be that the Legislature and DEQ have given short shrift to the environmental and community threats from gravel mining.”
In late June 2023, Kalispell gravel company, LHC, Inc., began digging a 21-acre gravel pit after receiving a DEQ mining permit and after the Department of Natural Resources and Conservation agreed to permit the use of state land. The asphalt produced was intended for the Salmon Lake Highway Reconstruction Project, scheduled to run until October 2024.
Protect the Clearwater filed for a restraining order and an injunction a few weeks after digging started. Then a year ago, Missoula County Judge John Larson decided that the Department of Environmental Quality had likely issued a “dryland” opencut permit to LHC without confirming whether surface and groundwater could be polluted or how many residents could be affected within a half-mile of the gravel pit.
Dryland permits require minimal environmental safeguards. He issued the injunction, which DEQ and LHC appealed last fall to the Montana Supreme Court, and Tuesday’s ruling was the result.
Coppes said he wouldn’t refile for an injunction as long as LHC didn’t renew its excavation of the gravel pit. The company might not, being it’s near the end of the construction season. But if it does, he’ll refile under the Montana Environmental Quality Act.
“We can pretty much copy and paste everything we had and file again if we need an injunction,” Coppes said. “Otherwise, we’re still waiting on a ruling from the (Board of Environmental Review).”
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