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MISSOULA — The developer of a controversial subdivision along Rock Creek should have secured a state mining permit before digging a 5-acre pond and could eventually be fined, an attorney with the state Department of Environmental Quality says.

Jane Amdahl said the department's enforcement division will review the case and decide if fines against LEMB Co. LLC of Oregon are warranted.

"That's fairly standard practice," she said.

Michael Barnes of LEMB Co. wants to build a 36-lot subdivision on 200 acres of land at the confluence of Rock Creek and the Clark Fork River. His crews have been working on the site since March.

The pond excavation and the resulting mound of gravel touched a nerve with neighbors and others interested in protecting the popular fishing stream.

The Rock Creek Protection Association filed a lawsuit alleging the developer was circumventing subdivision regulations, digging in the floodplain without a permit and violating both the state's Opencut Mining Act and Water Quality Act. Last week, a district judge issued a preliminary injunction stopping most work on the property.

"We're really happy that the DEQ has finally recognized what we've been saying for a long time — that this is a mine that requires a permit and the review associated with that, including an environmental assessment and a public hearing," said John Menson, Rock Creek Protective Association president.

Menson said the association and the state told the developer in April he needed a mining permit, but the developer resisted.

Barnes' attorney, Alan McCormick, said his client will be discussing alternatives with the DEQ.

"I'm not sure what the next step will be at this point," McCormick said Wednesday.

McCormick said the "curious and not-well-supported" DEQ letter could result in the need for many other construction projects around the state to obtain an opencut mining permit.

"We're obviously disappointed in the decision," McCormick said. "It was never our intent to mine gravel. It was always our intent to construct a pond."

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Montana's Opencut Mining Act requires anyone removing more than 10,000 cubic yards of land material to obtain a permit for the reclamation of the land, said Amdahl's letter.

"There is no doubt that more than 10,000 cubic yards of materials and overburden have been removed from the pond site," Amdahl wrote. "There also is no doubt that gravel removed from the excavation has been stockpiled and, according to your client, Mike Barnes of LEMB Co. LLC, a crusher will be brought in to process it for use on roads."

Barnes can appeal the decision to the Montana Board of Environmental Review.

The state hasn't decided how it will proceed, said Peter Mahrt, DEQ Opencut Section supervisor.

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