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2018-05-30_REVISION - C1983059
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2018-05-30_REVISION - C1983059
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Entry Properties
Last modified
5/31/2018 10:23:20 AM
Creation date
5/31/2018 10:16:30 AM
Metadata
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Template:
DRMS Permit Index
Permit No
C1983059
IBM Index Class Name
Revision
Doc Date
5/30/2018
Doc Name
Concerned Citizen Response
From
DRMS
To
Colin Hutto -Margie Nelson Trust
Type & Sequence
RN7
Email Name
JDM
Media Type
D
Archive
No
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C.R.S. § 24-70-106(2)(d) ("Section 106"). However, Section 106 does not apply to the publication <br />requirements for a complete permit renewal application for the following reasons. <br />First, the relevant provisions of the Act and Rules do not use the generic term "four weeks" that Section <br />106 defines; instead, the Act and Rules unambiguously express that notice must be published "once a <br />week for four consecutive weeks." Section 106 only applies "except as otherwise expressly provided" <br />and does not apply "for the purpose of increasing any period of publication or the number of publications <br />required by any statute." Thus, by its own language, Section 106 does not apply to the publication <br />requirements in the Act and Rules. <br />In addition, although Colorado courts have not opined on this matter, the Wyoming Supreme Court <br />specifically held that publishing "notice of their [coal mining] application on June 21, June 25, July 2 and <br />July 9, 1985" under Wyoming's coal mining act "fulfilled the statutory requirement of publishing the <br />notice once a week for four consecutive weeks," which language mirrors Colorado's Act and Regulations. <br />Grams v. Envtl. Quality Council, 730 P.2d 784, 788 (Wyo. 1986). <br />Second, even if the language from the Act and Rules was ambiguous, the rules of statutory construction <br />establish that an operator must publish notice for four, not five, consecutive weeks. As a matter of law, a <br />more specific statute is controlling over generic statutory language. See generally Colo. Mining Assn v. <br />Bd. of County Comm'rs, 199 P.3d 718, 733 (Colo. 2009). The Act and Rules tailor publication <br />requirements that are specific to coal mining applications by stating "once a week for four consecutive <br />weeks." In contrast, Section 106 applies only to generically define and clarify ambiguities in statutes <br />requiring publication of notices, but does not apply if the statute expressly provides otherwise. For over <br />thirty years, the Division has consistently interpreted the "four consecutive weeks" as requiring four <br />consecutive publications. The Division's reasonable interpretation of its Act and Rules is entitled to <br />deference. Colo. Ethics Watch v. Gessler, -- P.3d --, 2013 COA 172M, 1(21-22 (Colo. App. 2013). Thus, <br />Section 106's general requirement is inapplicable. <br />Third, the Division's interpretation is consistent with the overarching federal requirements. To regulate <br />coal mining, a state must achieve "primacy," i.e., must be delegated authority pursuant to the federal <br />Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1201 – 3128 (SMCRA). A state is delegated <br />authority only after the federal Office of Surface Mining, Reclamation and Enforcement's (OSM) review <br />and approval of the state's enacted legislation and promulgated rules. Colorado has had primacy since <br />1980. Colorado's language— "once a week for four consecutive weeks"—mirrors its federal counterparts <br />in 30 U.S.C. § 1263(a) and 30 C.F.R. § 773.6. The Division has consistently interpreted and applied this <br />language to require four, not five, publications since achieving primacy and OSM has not objected to the <br />Division's interpretation. <br />Lastly, any publication error is harmless as it is undisputed the Trust received notice and timely submitted <br />comments. See Chostner v. Colo. Water Quality Control Comm'n, -- P.3d --, 2013 COA 111,10 42-43 <br />(Colo. App. 2013); Wunder v. Dep't ofRev., 867 P.2d 178, 181 (Colo. App. 1993). Even if a notice is <br />statutorily defective, an agency decision is not reversible if the party was not prejudiced or adversely <br />affected by the improper notice. Wunder, 867 P.2d at 181. Applicable here, the Trust timely submitted <br />its comments and has not demonstrated how it has been prejudiced or adversely affected by the published <br />notices. Terror Creek complied with the Act and Rules by publishing notice for four consecutive weeks. <br />B. The Act prohibits the Division from resolving private property rights disputes. <br />Trust's Objection: The gate on the haul road is "maintained in a closed and locked position, preventing <br />the Requestor from its lawful access to the easement." Objection Letter, p. 2. <br />Response: The Act prohibits the Division and the Mined Land Reclamation Board from resolving private <br />5 <br />
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