2021-10-27_REVISION - M1976007UG (31)

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Division of Reclamation, Mining and Safety October 27, 2021 Page 4 3601176.2 activity or topographical alteration.” Ex. A, at 1.3 Until these land use approvals and permits have been obtained, Acme Brick Company cannot satisfy its burden of proof to demonstrate that its proposed expanded mining operation will comply with all local land use laws as required under Section 34-32.5-115(4)(d), C.R.S. Within the Application, Acme Brick Claims that the only Jefferson County permit that it intends to seek is under Jefferson County’s “Location and Extent” process. See Application, Ex. M. However, a review of the County’s Zoning Resolution confirms that this proposed process is inapplicable to these circumstances. See generally Zoning Resolution, § 8. As confirmed by Section 8 of the Zoning Resolution, Jefferson County’s Location and Extent process only applies to the siting of new roads, parks, and public utilities (see C.R.S. § 30-28-110), public schools (see C.R.S. § 22-32-124(1)), or charter schools (see C.R.S. § 22-32-124(1.5)(a)). Zoning Resolution, § 8(A)(1). Accordingly, this process is inapplicable to Acme Brick Company’s expanded mining operation and cannot legalize the proposed use which remains unlawful under the existing zoning of the site. To the extent that Acme Brick Company may try to argue that some or all of the Jefferson County Zoning Resolution does not apply to its proposed expanded mining operation because the site is owned by the Colorado State Land Board, such an argument is unavailing. While the Zoning Resolution does exempt certain state-owned lands from its use restrictions, this exemption only applies to uses where state law does not require compliance with local land use laws and where the use “fulfill[s] a governmental (nonproprietary) function which the governmental owner/operator is legally authorized to provide.” Zoning Resolution, § 1(H). Acme Brick Company’s proposed expanded operation fails to meet each of these requirements. First, state law expressly provides that a mine operator must comply with the local land use rules of any political subdivision (like Jefferson County) which has adopted a mineral extraction plan. C.R.S. § 34-1-304; see also C.R.S. § 34-32.5-109(3) (“Any mining operator subject to this article shall also be subject to zoning and land use authority and regulation by political subdivisions as provided by law.”). It is well-settled that state law governing mining permits and providing for local control of land use regulations applies with equal force to lands that are controlled by Colorado’s State Land Board. Colo. State Bd. of Land Comm’rs v. Colo. Mined Land Reclamation Bd., 809 P.2d 974, 985-87 (Colo. 1991). Second, Acme Brick Company’s proposed mine does not fulfill a governmental function and is instead for a proprietary use. Finally, the State Land Board is not legally authorized to operate mines, and Acme Brick Company’s proposal is for an exclusively private use. Third, the Application does not include a detailed reclamation plan that is sufficient to satisfy the criteria set forth in Section 34-32.5-116, C.R.S., as required for approval under Section 34-32.5-115(4)(g), C.R.S. The reclamation plan included within the Application is vague and does not include any particular deadlines or coordination with mining operations—likely because the 3 Acme Brick Company initially sought a rezoning of the site with Jefferson County in or around December 2020, but those efforts were quickly abandoned in the face of significant public opposition.