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2017-04-24_REVISION - C1981041 (2)
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2017-04-24_REVISION - C1981041 (2)
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Entry Properties
Last modified
4/25/2017 8:57:30 AM
Creation date
4/25/2017 7:33:25 AM
Metadata
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Template:
DRMS Permit Index
Permit No
C1981041
IBM Index Class Name
Revision
Doc Date
4/24/2017
Doc Name
Motion to Dismiss for Lack of Jurisdiction by Objector Fontanari Family Revocable Trust
From
James Beckwith
To
DRMS
Type & Sequence
TR69
Email Name
JHB
JRS
Media Type
D
Archive
No
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lands because Fontanari lacks any right under law to request a revision of the reclamation plan <br />and this Board may not alter the request even on its own motion .3 <br />ARGUMENT <br />Both DRMS and MLRB are agencies of the executive branch of state government and <br />each has limited —not unlimited — regulatory authority. As set forth in C.R.S. §24-4-103(8) <br />"(8)(a) No rule shall be issued except within the power delegated to the agency <br />and as authorized by law. A rule shall not be deemed to be within the statutory <br />authority and jurisdiction of any agency merely because such rule is not contrary_ <br />to the specific provisions of a statute. Any rule or amendment to an existing rule <br />issued by any agency, including state institutions of higher education <br />administered pursuant to title 23, C.R.S., which conflicts with a statute shall be <br />void. (Emphasis Added) <br />Coal mining reclamation plans are part of the basic coal mining permit. A coal <br />reclamation permit must accommodate, inter alfa: (a) the land uses employed on the surface <br />prior to conducting mining; (b) the land uses to be made of the land following reclamation, <br />including the utility and capacity of the reclaimed land to support a variety of alternative uses; <br />and, (c) "...the comments of any owner of the surface....". 34-33-11 l(1)(b)(1); (c) and (d) By <br />Rule 1.04(7 1), Coal Rules, this Board has classified and defined the term "land uses" based upon <br />management -related activities rather than surface vegetation. Thus, "land uses" include (aside <br />from residential which is not applicable here): cropland; pastureland; rangeland; and, forestry. <br />Rule 1.04(71)(a) -(c) <br />C.R.S. §34-33-120(b) requires the coal permit operator to "...restore land affected (by <br />underground mining) to a condition capable of supporting the uses which it was capable of <br />supporting prior to any mining, or higher or better uses of which there is reasonable <br />3 Under 34-33-115(1)(b) and 34-33-116(3), the Board's power is stated as solely to adopt regulations but <br />not to modify or alter the proposed general or technical revision. <br />I <br />
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