Frequently Asked Questions

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 Opencut Mining Laws affect private and public lands across the state of Montana.

In 2021, Opencut Mining laws were changed to cut red-tape for gravel companies by removing environmental protections and fast-tracking permits issued by the Department of Environmental Quality (DEQ). The law substantially changed how the state regulates gravel pits, including those near residential areas and rivers, lakes, and streams. It put mining companies in charge of declaring whether ground and surface water would be impacted by their operations. 

The revised law makes it possible for DEQ to work closely with industry to expedite approval of gravel mines and asphalt plant permits on unzoned land. Using unsupported certifications by mining companies, under HB 599, the DEQ is required to issue permits within 30 days. 

One of these  expedited permits was issued near Elbow Lake in the Clearwater Watershed in April 2023 on public land and is called Clearwater-State, Permit #3473. 

 The DEQ accepted the mining company’s (LHC, Inc) certification that ground and surface water would not be affected by excavation, based on three 14-foot-deep test holes dug in January 2023. Neither DEQ nor LHC, Inc performed an independent hydrologic evaluation to support their theory.  In court, the DEQ testified the agency is authorized by MCA (Montana Code Annotated) to “rely on the certifications of applicants” and that no further evidentiary investigations were necessary. The permit allows for a 20-foot-deep excavation pit.

 The permit allows mining operations to run for 17 years, 365 days a year, 24 hours per day, seven days a week. The permit can be extended if requested by LHC, Inc and reclamation can also be delayed. Asphalt plant production materials can be stored on site and artificial lights can be used at night. 

 Opencut laws do not consider these potential problems in permit decisions. Citizens must contact other state offices with concerns after mining operations have started and problems appear. Citizens have already appealed for, and have been granted, reductions in property taxes.

 No. The DEQ did not contact the Department of Fish, Wildlife, and Parks (FWP) about the EA that documented the need to preserve an adjacent critical wildlife corridor. In 2009, FWP acquired 53 acres on the northern border of the site in a land swap to prevent the area from being developed. The swap cost $1.2 million dollars (about 1.75 million in today’s dollars) and took decades of work by state employees to complete. The area is now managed as part of the Blackfoot-Clearwater Wildlife Management Area. In fact, the FWP wildlife management area shares a border on three sides.

 An appeal can be filed within 30 days to the Board of Environmental Review (BER). The BER is part of the Dept of Environmental Quality and meets every 6-8 weeks. Mining operations can continue while the appeal is heard. Protect the Clearwater (PTC) filed an appeal in May of 2023 and the BER is still reviewing our concerns as of February 2024.

 PTC filed a complaint in the Fourth District Court in Missoula for violations to the Montana Environmental Protection Act (MEPA), the Montana Public Participation Act and the Montana Constitution.  Concerned about imminent harm to the area, PTC also requested a temporary restraining order be issued while the BER reviewed our appeal. That restraining order was issued by Judge John Larson on July 17th, 2023, and upheld after a hearing on July 21st stopping all mining activity.  In his decision, Judge Larson required the cases in the BER, and the Fourth District Court be heard before mining work continued.

 Between June 28th and July 17th, 2023, mining operations commenced. As a result, old growth trees were felled, topsoil and winter forage for wildlife were stripped, excavation dust drifted into the river and landed on outdoor furniture of nearby homes, and local property owners were subjected to noise from heavy equipment. The Missoula County Health Department received numerous complaints about dust pollution and petroleum products were spilled (and remain) on the site.

The site sat disturbed and  exposed to the elements and noxious weed seeds. A concerned citizen wrote to the governor, DEQ, and the Dept of Natural Resources (the public land manager) in September, requesting the site be rehabilitated while the cases were decided. Only berms created by excavation were seeded, leaving most of the disturbed ground at risk.

  The DEQ and LHC, Inc. asked for Judge Larson to be replaced to hear the pending MEPA case in the 4th District Court in Missoula. Judge Leslie Halligan was randomly selected in his place.

The DEQ and LHC, Inc also appealed Judge Larson’s decision to the Montana Supreme Court. Our legal team is preparing for that case.

The administrative appeal to the BER is working its way through the system with no clear decision date identified. 

It is up to Montana citizens, at their own expense, to act as a check on expedited opencut mines allowed by the DEQ. Our attorneys continue to submit evidence and legal briefs to three state agencies. Staff attorneys at the DEQ continue to argue that the effects of this permit will be minor and short-term.

The Opencut Mining Act (HB 599) makes it exceedingly difficult and expensive for the average citizen to fight for government accountability and our natural environment. The law has made it possible for a private mining company and the DEQ to fast track a gravel mine permit lasting 17 years with very little oversite and environmental due diligence.

People can help PTC  by contributing to pay legal fees. A victory for Protect the Clearwater can reverberate across the state, helping to preserve our water, wildlife, and the legacy we leave for future generations.

Protect the Clearwater (PTC) is not opposed to all gravel mining; however, this particular mine has several problems. 

First, the Montana Department of Environmental Quality (DEQ) and the applicant for this mine site failed to adequately assess the mining operation for its effect on ground and surface water. In his ruling for a temporary restraining order district court judge John Larson concluded, “…that DEQ and LHC cannot certify that the operation will not “affect ground water or surface water.”

Second, the proposed mine site lies directly adjacent to the 65,000-acre Blackfoot-Clearwater Wildlife Management area. This is land managed by Montana Fish Wildlife and Parks (FWP) for winter range, wildlife security and migration. Notably, in 2010 FWP acquired 53-acres immediately north of the mine site for 1.3 million dollars to secure a migration corridor for wildlife. During their environmental assessment, DEQ did not consult with FWP.

Third, after the permitting and initial clearing of the mine site, the Montana Department of Revenue has reassessed property in the area and reduced its value by about 14%.

Fourth, during the permit review there was an inadequate opportunity for public comment and no public meetings were held where concerns and comments would be heard.

The airborne particulates released from mining operations like this pose a health risk to people living in the area, particularly those with lung conditions and breathing problems. The mine site is across a state highway from the Last Best Place cemetery where people go to honor friends and relatives that have passed.

We invite you to view the documents page for more information on Judge Larson's ruling and the 2010 land acquisition by FWP.