by Jacob Owens | Sat, September 14th 2024 at 4:00 PM
Updated Sat, September 14th 2024 at 11:17 PM
LOLO, Mont. — A group of Missoula County residents are suing county commissioners over approving the expansion of a gravel pit south of Lolo.
The controversy surrounds a 66-acre gravel operation between Lolo and Florence. The area is off Old Highway 93 South and McClain Creek Road, owned by the company Western Materials.
The gravel pit can now expand west following the approval of a use variance. The move is expected to increase the mined area to more than 96 acres in the coming decades.
“It was clear to me for months prior that that was going to be the result, but you have to continue to participate,” Graham Coppes, an attorney at Ferguson & Coppes, said. “The law requires you to exhaust that remedy, that local government remedy before you can seek a court’s involvement.”
Coppes’ natural resources law firm represents the Carlton Protection Trust. The trust is a nonprofit made up of residents who live near the pit.
The variance request underwent five public hearings before approval. Concerns raised by opponents included water contamination, the impact on wildlife and truck traffic on Highway 93.
In the filing, attorneys for the Carlton Protection Trust cite public comment and testimony as evidence that the variance would significantly impact residents of the zoning district, and that the variance is not in the public interest.
“My feel of it was that the county was bending over backwards to make this happen. That they were ignoring relevant evidence that showed that this is a harmful and polluting activity,” Coppes told NBC Montana.
The mine’s alleged illegal expansion over the years is another point raised in the lawsuit.
One document cited in the complaint is from the Missoula County Deputy Attorney in 2008, Michael Sehestedt. The letter states that the-then gravel pit officials applied for a permit to expand in 2001, but officials never issued the permit.
However, for several years, the pit and the Department of Environmental Quality operated as if a permit to expand had been issued.
NBC Montana reached out to Missoula County for comment. As of the morning of Sept. 10 the county had not been served, Allison Franz, the county’s communications manager, said, adding that Missoula County does not typically comment on pending litigation.
Gallatin County District Court Judge Andrew Breuner had two unenviable choices: Hurt the water or hurt the economy.
He chose neither in a decision regarding permitting a private wastewater system that sits near one of the greatest tourist destinations on earth, Yellowstone National Park.
At the heart of the court case decided last week and released Monday was whether a new wastewater treatment system for two properties owned by Kampgrounds of America near West Yellowstone, Montana, were properly permitted by the Montana Department of Environmental Quality.
One thing that was not contested in the court case was whether an older antiquated wastewater system needed replacement.
However, neighbors and the Upper Missouri Waterkeeper objected to the new wastewater system that would process thousands of gallons of water a day, using aeration and spraying hay fields to help treat the wastewater. Neighboring property owners, including a guest ranch, worried that the spray of untreated wastewater would cripple its reputation as a tourist destination. Upper Missouri Waterkeeper, a conservation organization concerned with water quality, said it never had a chance to review the system.
Meanwhile, the Kampgrounds of America, which recently bought the commercial campgrounds, said it has spent millions for the property, improvements and planning the wastewater treatment system, and would have never done so if the DEQ had not approved the wastewater processing plan properly, it told the court.
Ultimately, it was Judge Breuner’s dissatisfaction with DEQ for not following state law or the Constitution that is at the heart of the matter, but led to him issuing a narrowly written temporary injunction against the project, at least until it meets the minimum requirements of Montana law.
In a battle that would seem to pit Diamond P Ranch properties against the two KOA campgrounds, it is the state’s own Department of Environmental Quality that received the heaviest criticism from the judge.
“The court is not persuaded by DEQ’s argument that the agency possesses wide discretion under the law to determine when and whether to provide for public participation opportunities or — as is the case here — not to provide any at all,” Breuner wrote.
Rex Portmann, the principal of Diamond P, originally filed the lawsuit challenging the DEQ’s decision, saying that he couldn’t have objected to the wastewater system because there was no public hearing and no public input on the project, a violation of state law and the Montana Constitution’s right to public participation.
Breuner characterized the DEQ’s actions as a “complete absence of any notice.”
In the court order by Breuner, the DEQ seemed to agree with Portmann that it didn’t give any notice of the project. Instead, attorneys argued that since Portmann had inquired about the project, even saying he had wanted to object to it, that he had adequate notice and should have filed a lawsuit within a 60-day window.
However, Breuner rejected that argument and said the DEQ had made no public notice, and the project failed to live up to the required public disclosure of the Montana Constitution, even if the new wastewater treatment system may be demonstrably better than the one it’s replacing. Breuner also said that it was impossible for Portmann to object if he didn’t know where to find the information or if the information had never been made available.
“Even if public notice and participation had been fully afforded, there is no guarantee that rejection of the regional system would have been the conclusion,” Breuner said. “There are indications that the regional system is a marked and environmentally friendly solution to the antiquated system it is replacing.”
While Breuner said that halting the entire project may be appropriate because the DEQ failed to notify the public, doing so may jeopardize hundreds, if not thousands, of people who have made vacation and travel plans, thereby impacting the local economy.
Instead, he ordered the DEQ to restart the process, including following the Montana Environmental Policy Act, which the DEQ had also failed to meet, as well as restart the public participation process, even though DEQ employees told Breuner that they weren’t required to do so — a point which he corrected.
“MEPA required some measure of public notice and participation in its review of the regional system and there was, by DEQ’s own admission, none,” Breuner wrote.
For the remainder of the summer tourist season, the KOA will be allowed to operate the system with some limitations, which the judge said would hopefully minimize the impacts to Diamond P.
The judge also said that Portmann discovered the project because he could see the construction and activity taking place, which tipped him off to the KOA’s actions. But Breuner said that even if the court accepted that Portmann was notified of the change, the rest of the public, which has a right to clean water and a clean environment according to the Montana Constitution, would have no way of knowing about the new wastewater treatment facility.
“The court initially observes that an agency’s admitted failure to provide lawful public notice and participation … are germane to the substance of the underlying assessment and decision making because a process that lacks necessary public input is arguably offensive to due process guarantees against arbitrary and capricious government action,” Breuner said.
Montana Supreme Court reverses the Montana Department of Natural Resources and Conservation (DNRC) grant of commercial water right to Montana Artesian Water Company in Creston, MT
For seven long years, the attorneys at Ferguson & Coppes have worked diligently to protect water rights and hold the Montana Department of Natural Resources and Conservation accountable for its decision making. This saga – the largest administrative proceeding ever before the Department – now is over as the clients of Ferguson & Coppes recently prevailed in their most recent appeal to the Montana Supreme Court.
In 2015, the Montana Department of Natural Resources and Conservation (DNRC)issued a water use permit, allowing the Montana Artisan Water Company (MAWC) to produce up to 140,000 water bottles per hour, 24 hours a day, seven days a week – roughly 1.2 billion, 20-ounce water bottles annually – by tapping into a groundwater aquifer along the Flathead River.
Although MAWC insisted it would only use a fraction of the water-usage capacity assigned under the permitted right, the bottling operation attracted considerable attention, fueling concerns among neighbors and residents living near the Egan Slough property. Nonprofit conservation organizations Water for Flathead’s Future and Flathead Lakers, along with a list of residents, sued the state Department of Environmental Quality and the Department of Natural Resources and Conservation, challenging the two permits granted to MAWC that the state agencies issued — one for wastewater discharge and another for water usage.
All briefs having been submitted on November 30, 2022; our attorneys and clients eagerly awaited a response from the Montana Supreme Court, which came on May 16, 2023 in a 44-page unanimous decision.
The Supreme Court upheld a decision by a district court judge in Helena that said the state erred when it issued a permit to MAWC in 2017, citing that the company did not provide sufficient data, as required by DNRC’s own rules, for the agency to conduct a valid scientific analysis and justify issuing the permit. In its decision, the Supreme Court said DNRC made a mistake in its decision to approve the permit by committing errors of law during the processing of the application, including the failure to submit all the data and failure by the agency to fulfill its duty to analyze all potentially affected water sources. “The errors of law and process undermine confidence in the agency’s determinations … Consequently, this combination of deficiencies leaves us with the definite and firm conviction that, upon review of the whole record … a mistake was made.” Because there is so much water in the aquifer, the agency “assumed the proposed well would have little impact and passed it along without diligent review,” the Court wrote.
“Objectors marshalled extensive expert testimony and addressed a voluminous record to support their claims. Objectors uncovered the errors in DNRC’s review process that led the District Court, and now this Court, to reject the permit, despite usual deference owed to the agency. After extensive effort, Objectors are clearly the prevailing party.”
Counsel for Petitioners Graham Coppes said he was “thrilled” with both the substance and the tone of the Court’s decision. Beyond striking down DNRC’s flawed decision making process and scant hydrology, in a spectacular move out of pure equity for their effort and winning arguments, Montana’s high court awarded our clients their attorney’s fees. Following remand, Ferguson & Coppes, was able to secure hundreds of thousands of dollars for their clients (paid in settlement), both from the bottling company and the DNRC.
In a true “David vs. Goliath” story, Montana’s citizens were the true victors in a decision that will stand testament to the value of cherished and pristine water resources.
On September 28, 2022, the Department of Justice formally withdrew its second 9th Circuit Appeal after losing a judgment on the merits issued by the Honorable Donnald Malloy. At issue in the case was the agency’s failure to act pursuant to § 706(1) of the Administrative Procedures Act and the National Scenic Trails Act. Emily Wilmott and Graham Coppes successfully prosecuted the case against the Kootenai National Forest who were more then a decade late in drafting and authorizing a Comprehensive Plan which incorporated protections for the Cabinet-Yaak population of Threatened grizzly bears.
Ferguson & Coppes attorney’s Graham Coppes and Emily Wilmott have submitted the final briefs in what has now become a 5 year long battle to protect senior water rights and lawful agency decision making. After Graham and Emily prevailed for the second time in the First Judicial District, the Company again appealed. See Flathead Beacon article. Now, after all briefs have been submitted, on November 30, 2022, the Montana Supreme Court issued an order declaring that the matter has been submitted for decision to the full court sitting “en banc.” Our attorneys and clients eagerly await that decision.
On October 5, 2022 John Ferguson presented to Montana’s water law practitioners concerning the history of and recent changes to DNRC’s interpretation and enforcement of “combined appropriations” from multiple groundwater wells. More specifically, DNRC has recently again changed its analysis § 85-2-306, MCA, which authorizes the appropriation of groundwater up to 10 acre-feet per year from a single source aquifer, without a permit. In implementing this statute, DNRC has struggled over the years to articulate a clear policy for how it will deal with multiple wells developed on an individual property, or developed as a part of a single project. John’s presentation shed light on the nuances involved in this issue and the very muddy water which still surrounds this issue.
The lawsuit, filed in 1st Judicial District Court in Broadwater County, alleges the defendants failed to do their duty to consider impacts and protect water and land resources from unreasonable degradation under the Subdivision and Platting Act and the Montana Water Use Act. The lots received Montana Department of Natural Resources and Conservation (DNRC) approval to use aggregated exempt wells. At the center of the issue is Horse Creek Hills, a four-phase, 435-acre subdivision in Broadwater County on the eastern shore and directly upstream from Canyon Ferry Reservoir and Confederate Creek.
The proposed site is a rural, predominantly agricultural landscape and borders both state and Bureau of Reclamation land. The co-plaintiffs said in a news release announcing the lawsuit the county has ignored overwhelming public opposition to Horse Creek Hills without taking a hard look at the negative impacts this subdivision will have on agricultural operations, water resources, local wildlife, and the livelihoods of Broadwater County residents.“Our senior water rights, cattle operations, neighborhood roads, and quality of life will all bear the brunt of this subdivision if it goes forward,” Carole Plymale, a cattle rancher in Townsend
Recently Graham Coppes successfully secured a large settlement on the eve of trial for a client fighting to restore his water delivery systems after a neighbor bulldozed the historic ditches. After initiating suit, the neighbor claimed that the client’s water rights were invalid. Graham successfully defended the matter after certification of the proceeding to the Montana Water Court, where the Court awarded Graham’s client the full historical flow rate as claimed. Upon winning at the Water Court, the case returned to district court, where Graham successfully settled the case with a large damage award for his client.
