Montana Court Reins in DEQ’s dryland permitting

A recent decision out of the Montana Fourth Judicial District Court delivers a sharp rebuke to the Department of Environmental Quality’s (DEQ) approach to streamlined permitting—and highlights the continued strength of Montana’s constitutional environmental protections. In Protect the Clearwater v. Montana Department of Environmental Quality, the court granted in part and denied in part the plaintiff’s motion for summary judgment, concluding that DEQ misinterpreted its statutory obligations when approving a gravel pit under the “dryland” permitting process.  The case, litigated in part by MSWD attorneys Rob Farris-Olsen and Kim Wilson, underscores the risks agencies face when expediency overtakes statutory and constitutional compliance.

At the heart of the ruling is the court’s rejection of DEQ’s position that time constraints and streamlined procedures could limit its environmental review obligations. The court made clear that Montana’s Constitution imposes an independent duty on agencies to ensure a “clean and healthful environment,” requiring meaningful evaluation of environmental impacts regardless of permitting timelines.  By failing to fully assess the project’s impacts—and declining to prepare an Environmental Impact Statement—the court found DEQ acted arbitrarily and without substantial evidence.

The decision also delivers a strong message on public participation. DEQ had taken the position that public involvement could be limited, even suggesting that public meetings were not required absent a request from the project operator. The court rejected this interpretation, emphasizing that DEQ must actively calibrate public participation based on the complexity of the project and the level of public interest.  In doing so, the court reinforced that public participation is not a procedural formality but a substantive right tied to informed environmental decision-making. This is the third time in recent months that DEQ has been reminded it must comply with Montana’s constitutional Right to Participate.

While the court stopped short of immediately vacating the permit, it remanded the matter for further review, including compliance with MEPA and proper public participation procedures.  The ruling signals a broader takeaway for agencies and practitioners alike: streamlined processes cannot override constitutional mandates. As demonstrated by the work of Rob Farris-Olsen and Kim Wilson, courts remain willing to step in when agencies attempt to shortcut environmental protections and public engagement requirements.