by Anne Hedges
While the state is busy trying to minimize its oversight of opencut mines (gravel pits), a Missoula district court judge issued a strong rebuke of the state’s woefully inadequate opencut mine permitting process. The problems with opencut mine permitting and environmental review were largely created by the passage of a 2021 state law that cut the public out of most of the permitting process, put a target on unzoned rural areas, prevented consideration of water, air noise, wildlife and community safety impacts, and eliminated science-based decision-making by the Montana Department of Environmental Quality (DEQ).
Despite promises that air and water resources would be protected from gravel pit operations by other permitting processes, DEQ has been using “general permits” to approve gravel operations that impact water resources and release particulate pollution into the air, bypassing constitutionally guaranteed public notice and involvement processes with little to-no-analysis of site-specific impacts. These new permitting processes fail to protect neighbors and natural resources.
DEQ recently proposed to weaken the process even further by releasing a draft programmatic Environmental Assessment (EA) that would dramatically curtail environmental review of gravel pits under the Montana Environmental Policy Act (MEPA). DEQ’s proposal would allow any mine that a developer claims to be “dry” to avoid site-specific environmental analysis or public involvement. The generic one-size-fits-all programmatic EA would allow DEQ to avoid analyzing or disclosing a mine’s site-specific impacts on air quality, water quality, water quantity, wildlife, vegetation, historic and cultural resources, the economy, health, environmental regulations, and natural resources. DEQ says that only mines that do not impact water resources would be allowed to use this fast-track MEPA process. But DEQ’s proposal is deeply flawed.
DEQ’s draft programmatic EA assumes that developers always submit complete and accurate permit applications regarding a mine’s potential impacts to water resources. If a developer claims their mine would not impact water resources, DEQ would not independently verify the claim; instead, it would just fill out a checklist EA to show that it considered potential impacts. It would not need to consider public comment or conduct independent site-specific analyses. DEQ would not provide neighbors with notice or an opportunity for comment. The public, especially neighbors, would have no opportunity to provide accurate information to protect their water resources. Instead, it appears that DEQ wants people to anticipate what their concerns may be over a future gravel mine in their area and raise those concerns during the programmatic EA stage instead of being able to provide comments when a developer actually submits an application years from now.
In its proposed programmatic EA, DEQ dismisses all potential negative impacts from future mines by saying the potential impacts would be “small in comparison to the greater landscape” and would only last for 25 years (though mines can file for extensions beyond that timeframe).
For example, the programmatic EA assumes that the impacts of a gravel pit near the Blackfoot River would be the same as the proposed Emigrant gravel pit in the Paradise Valley or a mine near Jordan, which ignores vast differences in landscape, wildlife, and hydrology. And, to top it all off, DEQ would not be required to ensure neighbors are notified.
Furthermore, when considering a mine’s impacts on wildlife, the programmatic EA flippantly dismisses any future concerns by claiming that other suitable habitat will be available and the disturbance would only last 25 years. DEQ provides no site-specific analysis to indicate what other suitable habitat near future mine sites would provide such habitat or how different species may fare in the intervening 25 years.
In short, the programmatic EA creates a rubber stamp, allowing DEQ to quickly approve projects that a developer says are “dry,” regardless of harmful impacts or information to the contrary.
Fortunately, courts are not so easily duped. In late April, a Missoula district court judge ruled in favor of Protect the Clearwater, slamming DEQ’s permitting process for opencut mines. The decision involved a proposed gravel pit mine adjacent to the Blackfoot-Clearwater Wildlife Management Area, an important corridor for wildlife, such as grizzly bears and elk. DEQ argued that the developer said the mine site was “dry,” and the Legislature left it no time to provide notice and comment opportunities to neighboring landowners or to consider public input. The court did not buy those arguments.
The court found that, regardless of what the legislature required, “[t]he Montana Constitution obligates DEQ to render informed decisions on environmental matters.” ??The court also found that, “[b]y interpreting the statute to eliminate its obligation to calibrate public participation to the complexity and seriousness of the environmental issues,” DEQ failed to follow the law and the Constitution.
The court said DEQ erred by allowing the operator to determine the level of public participation and whether the proposal impacted ground and surface waters even though “[t]he record contains unsolicited communications from the public raising substantive concerns — including potential health impacts, threats to water quality, and environmental degradation.” The court ruled that DEQ should have consulted the Montana Department of Fish, Wildlife and Parks regarding impacts to this wildlife mecca. The judge’s extensive 58-page decision found DEQ’s permitting and environmental review process to be severely flawed and rejected its unsubstantiated claim that approval of a 17-year mining operation’s impact on wildlife would be “short-term and negligible.”
DEQ indicated it wanted to ask the Montana Supreme Court to intervene before the district court process was complete. Hopefully, the Supreme Court will reject that proposal and will eventually agree with the district court by requiring DEQ to notify neighbors, provide a meaningful public comment period, and analyze water resource and other environmental impacts before it issues permits that could significantly impact areas for decades to come.
This article was published in the June 2026 issue of Down To Earth.
