Until recently, if you wanted to operate a new gravel pit in Flathead County, you would need to go through a hearing process to acquire a conditional-use permit.

Gravel Pit

The point, of course, was that the government had a right to regulate gravel mining (and other industrial uses) "to protect the health, safety and general welfare" of the public.

But all that has gone out the window in Flathead County.

Thanks to a ruling by Forrest Sanderson, the county's planning director and zoning administrator, the county will no longer be able to limit, condition or regulate - in any way - the operation of gravel pits, asphalt plants or concrete plants on any property that isn't zoned specifically residential.

In fact, Flathead will be the only major county in Montana that does not regulate gravel pits, so it is obvious that something is seriously askew.

We will not question the intentions of Mr. Sanderson, but we will argue that he is wrong, and plainly so. In fact, the two sentences in Montana Code on which Mr. Sanderson is basing his entire case are at best ambiguous, and at worst entirely contrary to Sanderson's interpretation.

MCA 76-2-209 (2) states plainly that "the complete use, development or recovery of a mineral by an operation that mines sand and gravel… on a site that is located within a geographical area zoned as residential are subject to the zoning regulations adopted under this chapter."

So there is no doubt that gravel pits in residential zones are subject to regulation.

But nowhere does it say that gravel pits outside of residential zones are not subject to regulation. Indeed, it says just the opposite. In MCA 76-2-209 (1), the statement is made that "Except as provided in … 82-4-432, a resolution or rule adopted … may not prevent the complete use, development or recovery of any mineral… by the owner thereof."

Thus, the provisions of 82-4-432 are explicitly mandated by law as a means of limiting the "complete use" of a gravel pit or other mining operation.

Not coincidentally, one of the provisions of 82-4-432 (part of the Opencut Mining Act) requires that a permit for such mining should contain "a statement from a local governing body having jurisdiction over the area to be mined certifying that a proposed sand and gravel opencut mine and its operating and reclamation plans comply with applicable local zoning regulations…"

Sanderson and Deputy County Attorney Jonathan Smith argue that no local government agency has jurisdiction except in a residential zone, so therefore there is no question of compliance.

We think that is a particularly inventive reading of the law, especially in light of the stated intent of the Legislature in 84-2-402 (2) that the Opencut Mining Act is intended "to safeguard and reclaim through effective means and methods all agricultural, recreational, home and industrial sites subjected to or that may be affected by opencut materials mining."

The added protection for residential areas as mandated by 76-2-209 (2) of the county zoning rules should, therefore, not be seen as dismissing the Legislature's clear intent to protect "all agricultural, recreational, home and industrial sites" affected by gravel pits.

Besides, even if the argument advanced by the gravel industry had merit, it behooves Sanderson and other public officials to put the "health, safety and general welfare" of the public first.

They also have an obligation to fulfill the mandates of the Montana Constitution ahead of any state law, and the Constitution plainly states that all citizens have certain inalienable rights, including "the right to a clean and healthful environment and the rights of pursuing life's basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways."

Looked at in that context, it is hard to see how the county can refuse to regulate an industry that has such a broad impact on the environment and people's property rights. We hope the Board of Adjustment considers all the relevant laws when taking up the case at tonight's hearing, and not just one sentence taken out of context in the Montana Code.

The hearing is at 7 p.m. in the second floor conference room of the Earl Bennett Building.