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ISSUE <br />IZ HAS THE FAILURE TO HOLD THE FORMAL <br />HEARING WITEIIN THIItTY DAYS AS REQUIItED BY <br />STATUTE DIVESTED THE BOARD OF APPELLATE <br />JURISDICTION IN THIS MATTER? <br />It is specifically provided by statute that: <br />If a forma] hearing is requested, the board shall hold such <br />hearing in an appropriate location no later tha~i thirty days after <br />said request... <br />C.R.S. §3433-119(5)(emphasis added) <br />Assuming (without conceding it to be true) that Mr. Granberg's undated letter was <br />a proper request for a formal hearing pursuant to C.R.S. §34-33-119(4), (See Exhibit "C") <br />it was incumbent upon the Boazd to hold that hearing within thirty days of September 28, <br />1990, or not later than October 28, 1990. Failure to hold the formal hearing by the <br />appointed deadline of October 28, 1990, has resulted in the loss of the Board's appellate <br />jurisdiction conferred by C.R.S. §3433-119, Permit application decisions of the division- <br />appeals. <br />The thirty day time limit, within which the formal hearing shall be held, is not a <br />matter of discretion. It is not a time frame that may be ignored or disregarded for <br />convenience. It is a time frame during which the appellate jurisdiction of the Board is <br />alive and operative. <br />The selection and use of the word shall by the legislature with respect to the <br />necessity of holding the formal hearing within thirty days of the date of the request does <br />not suggest but implores compliance. It has been held by the Colorado Supreme Court <br />that the word shall "when used in statute has mandatory connotation and is antithesis of <br />discretion or choice." People v. Guenther, 740 P.2d 971, 975 (Colo. 1987) (citing People <br />v. Dut. Court, 713 P.2d 918 (Colo. 1986); People v. Clark, 654 P.2d 847 (Colo. 1982). <br />Trend cannot by agreement confer upon the Board continued appellate jurisdiction <br />by waiving the thirty day formal hearing requirement. Such action (waiver) presumes that <br />Trend holds the sole right (if any right exists thereto) to the formal hearing within the <br />requisite thirty days. There is no indication anywhere in the language of the Colorado <br />Surface Coal Mining Reclamation Act to suggest that an objector (as envisioned by C.R.S. <br />§ 3433-119(4)) possesses a right to the formal hearing within the thirty day time period. <br />It is, however, the duty of the Board to hold the formal hearing within the designated <br />5 <br />