2000-06-16_PERMIT FILE - M2000002 (5)

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otherwise contemplated in the Construction Materials rules. The Boazd should therefore exclude Pinnacle's objection from the final Pre-Hearing Order it adopts. 2. Pinnacle's objection is a misstatement of law since the statute authorizes the Board to issue a mined land permit prior to the approval of a mine operation by local land use authorities. Should the Board choose to hear Pinnacle's objection, it should note that Pinnacle has cited a case called Colorado State Board of Land Commissioners v. Colorado Mined Land Reclamation Board, 809 P.2d 974 (Colo. 1991) for the proposition that the Boazd "is prohibited from granting a permit for a new mining operation [ifJ the application is inconsistent with a county [land use] plan unless the affected government has declared its intent to change or waive the plan's prohibition." As footnote 2 in the case sets forth, at the time of the Colorado Supreme Court's 1991 decision, various provisions of the Mined Land Reclamation Act had been previously amended in 1988, but since such changes were enacted subsequent to the underlying case, the Court was constrained to a review of the statute in effect at the time the Board denied the mined land permit application in question. The application at issue in the Land Commissioners case was to convert a limited impact Section 110 permit to a Section 112 permit for a moss rock mining operation on leased State school lands. At the time. Sections 34-32-109(6) and 34-32-11(4), C.R.S. precluded the Board from granting a mined land permit application that violated local land use zoning authorities. Therefore the Court in the Land Cotmissioners case upheld the Board's denial of the mined land application because it did not conform with Boulder County Zoning Resolution requirements for issuance of a Special Use Petmit for open mining in a Forestry Zoning District. In 1988, House Bill 162 amended the Colorado Mined Land Reclamation Act, including the provisions cited so prominently in Pinnacle's late filed May 2 objection. Chap. 249, §§ 1 to 18, Colo. Sess. Laws 1200-1215, 1988. More specifically, both Sections 34-32.5-109(6) and 34- 32.5-115(4) were amended so as to remove those provisions of the statute that affirmatively precluded the Board from granting a mined land reclamation permit that violated local land use authorities. By this statutory amendment, the General Assembly assured that operators would be affirmatively required to comply with local law, while, at the same time, ensuring that the Board did not become needlessly entangled in local land use disputes. This approach was codified by the General Assembly in Senate Bill 95-156, which became law in 1995 and established the "Colorado Land Reclamation Act for the Extraction of Construction Materials" (34-32.5-101, C.R.S. et sec.; see also Sections 34-32.5-109(3) and 34- 32.5-115(4), C.R.S.). The construction materials statute and regulations make it the operator's responsibility to obtain all necessary local land use approvals, a process in which MPC is currently engaged with Adams County. The Board is, therefore, fully authorized by its enabling statute to approve Application No. 2000-002 prior to the issuance of any local land use approval that MPC may be required to obtain. The fact that a mine permit might be issued prior to a local land use approval does not eliminate an operator's obligation to obtain such an approval, nor would the Boazd's action run afoul of the preclusions set forth Section 34-32.5-(4)(d), C.R.S. 4