Gravel pit near Glacier gets OK

Fine print forcescounty to approve legal settlement

The Flathead County commissioners reluctantly approved an "appalling" lawsuit settlement Thursday, clearing the way for a gravel pit near the entrance to Glacier National Park.

West Glacier residents were horrified by the decision, saying it undermined long-standing efforts to protect the park from exactly this kind of incompatible land use. They blasted mine owner Robert Spoklie, saying he was a "bad neighbor" who didn't care how the operation would affect area residents, visitors or the pristine environment.

"I'm profoundly disappointed that the search for money and profit would place in jeopardy a national treasure like Glacier National Park, and I'm disappointed that someone would pursue an opportunity like this," said Commissioner Joe Brenneman. "Nevertheless, we are a nation of laws, and the county's options are extremely limited. Without this settlement, there's a high likelihood that the gravel pit would be there anyway, without any conditions at all."

Spoklie, who didn't attend Thursday's meeting on the advice of his lawyers, filed the lawsuit in January 2006 after the county denied his request to expand the pit from about 8 acres to 24 acres.

The mine is along Belton Stage Road between Lake Five and the park boundary. Limited operations took place there for a number of years; Spoklie acquired the property in 2004.

Based on a variety of evidence - including written reports from the previous owner indicating that no gravel was extracted from 1995 to 2004 - the commissioners determined that the mine didn't qualify as a grandfathered use.

That meant it no longer complied with the Middle Canyon zoning regulations. Consequently, in addition to denying the expansion permit, the commissioners ordered Spoklie to stop all mining activity on the site.

Missoula attorney Alan McCormick, representing county in this matter, said he and the Flathead County Attorney's Office did a great deal of research, looking for ways to prevail in the lawsuit. However, given the state statutes and the Canyon zoning rules, they were forced to recommend the settlement.

Two issues prompted that decision:

. First, there is a "saving" clause in state statutes which effectively exempts gravel mines from local zoning restrictions, as long as the mine permit was issued before April 1991 (when local governments were first granted authority to regulate pits).

"Any permit issued before that time is not subject to the zoning regulations and can never be subject to zoning," McCormick said.

The initial permit for Spoklie's mine was issued in March 1991.

Moreover, the determination that the mine didn't qualify as a grandfathered use was itself an application of the zoning regulations, McCormick said. The commissioners had to use the zoning rules to decide that issue - but because the mine isn't subject to zoning, the status of its permit isn't an issue the county can even raise.

"Unfortunately, the decision is taken out of your hands," McCormick said. "The saving clause says the mine permit is valid until the [Montana Department of Environmental Quality] says it's been abandoned."

. Second, the Canyon land-use regulations say any industrial operation that wants to expand by more than 25 percent must apply for a major land-use permit. The expansion must satisfy a list of criteria - but if all the criteria are met, the county has to approve the permit.

"That list of criteria wasn't designed to address industrial uses, so it doesn't give you any ability to regulate industrial operations in the Canyon," McCormick said. "We would recommend that you fix the Canyon regulations as quickly as you can."

The outcome of these two issues, he said, is that the county can't consider the status of the initial permit, and it can't refuse the expansion permit.

"I've been involved with land-use issues for 14 years, and this is one of the most bizarre situations I've ever been involved in," McCormick said. "We tried to find ways not to reach this conclusion, but we couldn't. So we're recommending that you do something we know you don't want to do, and settle this case."

If the county declined the settlement and lost the case in court, he suggested, it could be liable for substantial damages.

The negotiated settlement imposes a number of conditions on Spoklie's operation, including limiting the active extraction area to a maximum of 8 acres at any one time.

The overall size of the gravel pit would be capped at 24 acres. No further expansions would be allowed, asphalt and concrete batch plants specifically are prohibited, and crushing operations would be prohibited from June 15 to Aug. 21 and from Nov. 15 to March 12. Hours of operation would be from 7 a.m. to 7 p.m. Monday through Saturday. Spoklie must also construct a 6-foot gravel bike path along Belton Stage Road, and provide gravel and equipment to help pave a mile-long section of the road; the county will survey and clear the right of way and provide the hot asphalt mix for the paving.

Jack Tuholski, a Missoula attorney representing the neighbors, said the Canyon regulations never intended that industrial operations be allowed to expand automatically. He also questioned the constitutionality of the saving clause.

"The Montana Constitution makes it clear that local governments have a responsibility to protect the environment and the public health and welfare," he said. "Any regulations that tie [the commissioners'] hands in that regard are constitutionally suspect. By exempting them from zoning, this clause gives special protection to the gravel industry that isn't available to other industries. We're certainly going to consider challenging the constitutionality of this decision."

Monica Jungster, who lives in West Glacier and owns a business there, said she was "disgusted that one person could care so little" about the broader public impacts from a project such as this.

"We're encouraging the state and federal government to address the potential effects from the Cline Mine in Canada and we can't even get a handle on one local gravel pit? That doesn't look good for us," she said. "There's one person in Flathead County who doesn't seem to get that."

Ann Fagre said she was "appalled that this saving clause allows one person to override everyone's hopes and dreams and aspirations for the area."

Commissioner Gary Hall adamantly opposed providing any asphalt mix to pave Belton Stage, saying the county couldn't afford to pave roads for its own residents, much less subsidize a private gravel pit. He also objected to the hours of operation, saying they were too long.

McCormick agreed with Hall's concerns, but noted that the saving clause arguably prohibits the county from imposing any conditions at all - meaning Spoklie didn't have to accept any of the restrictions contained in the settlement agreement.

"Bob wasn't interested in getting into a fight for the sake of getting into a fight," said Mark Etchart, one of the attorneys representing Spoklie. "He was interested in getting a reasonable result. He just wants to use his property, and the settlement is a reasonable way of getting there."

The commissioners approved the settlement on a 2-1 vote, with Hall voting in opposition.

Reporter Bill Spence may be reached at 758-4459 or by e-mail at bspence@dailyinterlake.com