Helena judge orders DEQ to issue permit ‘forthwith’

A Helena District Court ordered last week that a proposed gravel pit operation south of Belgrade be issued a permit to begin mining immediately, and a handful of other gravel mining operators now have asked the court for the same consideration, a spokesperson for the Montana Department of Environmental Quality said Monday.

Citing state law and backing up his decision with a Montana Supreme Court case — and in light of perceived future intentions of Gallatin County officials, District Court Judge Jeffrey Sherlock wrote Wednesday ordered DEQ to “forthwith issue a permit allowing operation of the Cameron Springs gravel pit.”

Cameron Springs is one of two proposed open cut mines along East Cameron Bridge and Alaska South roads that prompted the Gallatin County Commission to consider adopting emergency interim zoning in the area.

The county’s proposed regulations would incorporate a conditional use permitting process, county officials said. By utilizing the CUP process, commissioners hoped to install additional regulations to address area residents’ concerns. The process allows for site-specific evaluation.

“We just want them to be good neighbors,” County Commission chair Bill Murdock said of gravel miners. “We want to work with the industry and with their input; we are going to come up with what we hope are reasonable rules.”

But Cameron Springs owners were concerned the additional regulations would be a financial burden and could make “it economical impossible to proceed,” which led the company to file with the court, said James Shuler, a Helena attorney representing the operator.

By law, DEQ must issue a permit within 60 days after it acknowledges the receipt of a complete application, which it did in Cameron Springs’ case Jan. 30, according to court records. But the agency said it would not issue a permit until an environmental assessment was finished.

Therein lay the problem. As of last week, DEQ had not even started the EA process for Cameron Springs. Currently, the agency has about 200 permits waiting for approval, DEQ’s open-cut mining supervisor Chris Cronin said. The department has four reclamation specialists on staff to cover the entire state.

“It takes a lot of time,” he said. “The open cut act itself is fairly limited in what it requires the department to do, but when you get involved in the (state environmental laws), particularly if it’s a contentious project, the amount of time can be immense.”

And that time frame is what lead Sherlock to issue his order, according to court records. Also playing a role is the possible interim zoning ordinance the county is working to implement. Sherlock twice referenced the county’s zoning plans in his order.

“If the zoning district is enacted as requested before the (DEQ) issues an open cut mining permit to (Cameron Springs), it is possible that (the) proposed operation will be subject to additional restrictions and may even be zoned out of existence before it can begin,” Sherlock wrote.

Furthermore, he wrote, “... the Gallatin County commissioners may well issue zoning regulations that would prohibit (Cameron Springs’) proposed use of the land in question. If that should occur, it is clear that (Cameron Springs) will not have a speedy or adequate remedy at all.”

That portion of the order had county officials scratching their heads Monday, largely because in virtually every public hearing held over gravel pits since last year, commissioners took a firm stance that gravel pits will not be prohibited, both Murdock and County Commissioner Steve White said.

“That’s not were we were headed,” Murdock said. “We were never going to prohibit gravel pits.”

But both Cameron Springs owners and DEQ signed off on an agreement that was used by Sherlock to make his decision. The agreement states that the Cameron Springs operation “may even be zoned out of existence before it can begin.”

DEQ attorney Jane Amdahl based that belief on a draft interim zoning ordinance issued by the Gallatin County Planning Department, DEQ Chief Legal Counsel John North said Monday.

“She determined, based on that, certain operations could be prohibited within those (regulations),” he said. “It does say ‘may’ and not ‘will.’”

Cameron Springs’ attorney Schuler agreed, adding that the ordinance could have adversely affected the proposed gravel operation.

“That allegation was based upon information provided to me by a couple different sources,” he said. “We agreed with DEQ that an application for zoning had been submitted to the commission that, depending on their decision, might have imposed additional conditions or made it economically impossible for the operation to proceed.”

But county officials stressed the draft interim zoning ordinance was just that — a draft — and that using it as the basis of a court order was premature.

A new updated version of the draft is slated to be kicked out later this week, and will go before the commission for a public hearing May 7, County Planning Director Greg Sullivan said. Giving the preliminary nature of the issue, county officials could have shed some light on the issue.

“What I’m disappointed with is no one ever talked to anyone at the county,” he said. “They stipulated the facts that everybody agreed upon without ever asking me. They just took that draft and made it like it was going to happen before it ever made it through the process.”

White agreed, but noted during that time, the early draft was the only official county document out there on the subject.

“You’re not dealing with an adopted document; you’re dealing with what’s going to be debated in a public hearing,” he said.

At any rate, the Nistler pit along Highline Road and the Spanish Peaks pit on another corner of East Cameron Bridge and Alaska South roads are up for a hearing today in Helena District Court, DEQ attorney North said.

At the moment, DEQ has not decided if the department will appeal Sherlock’s order until Director Richard Opper returns to the office today, North said.

Also, the East Cameron Bridge Action Group, a coalition of neighbors to the proposed pits, is mulling over potential options, the groups attorney, Hertha Lund, said.

“We’re reviewing all of our options,” she said. “Obviously everybody thought we were working through a process together and they kind of had another process going on at the same time.”

TMC, Inc., a Belgrade based gravel operation with proposed new and amended pits in the emergency zone, entered the fray filing suit in Helena District Court Monday.

County officials opted not to pursue any action in light of Sherlock’s order, White said Monday. Commissioners could have set a hearing with as little as 48 hours notice to adopt emergency zoning.

They chose not to largely because the issue is still playing out and public involvement needs to keep moving, White said.

“From our point of view there is a process in place,” he said.

Had commissioners sought to slap in an emergency zoning ordinance in response to the court order, “We would be placing police powers in terms of land use without any due process,” he said.