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2006-07-27_REVISION - M1978314
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2006-07-27_REVISION - M1978314
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Entry Properties
Last modified
6/15/2021 6:05:55 PM
Creation date
11/21/2007 9:01:49 AM
Metadata
Fields
Template:
DRMS Permit Index
Permit No
M1978314
IBM Index Class Name
Revision
Doc Date
7/27/2006
Doc Name
Motion to Dismiss
From
Hogan & Hartson
To
MLRB
Type & Sequence
CN1
Media Type
D
Archive
No
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<br />DISCUSSION <br />C.R.S. §34-32.5-110(5)(a) expressly states that "[a]ny operator conducting an operation <br />under a permit issued under this section [Section 110 permit] who has held the permit for two <br />consecutive years or more and who subsequently desires to expand it to a size in excess of the <br />limitation set forth in subsection (1) of this section may request the conversion of the <br />permit...." (emphasis added). Under that plain statutory language, and under the well- <br />established principles of statutory construction discussed below, the Applicant is not eligible to <br />request conversion of its 110 Permit to a 112 Permit until it has operated the Gravel Pit for a <br />minimum of two years - in other words, the Applicant cannot make that request and initiate the <br />review process until September 10, 2006, at the earliest. <br />The Board must give effect to the intent of the legislature. State v. Nieto, 993 P.2d 493 <br />(Colo. 2000). That intent is determined by examining the plain language of the statute. <br />Colorado Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d <br />585, 593 (Colo. 2005)(quoting Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218-] 9 <br />(Colo. 2002))("[I]f courts can give effect to the ordinary meaning of the words adopted by a <br />legislative body, the statute should be construed as written since it may be presumed that the <br />General Assembly meant what it clearly said."). In this case, the plain language of C.R.S. §34- <br />32.5-I10(5)(a) authorizes only those gravel pit operators who have held permits for over two <br />years to request conversions. The statute clearly applies to a~ operator, not just the original <br />permittee. Any operator, including a successor operator, who has held a permit for less than two <br />years is not even eligible under the statute to apply for a conversion. Had the legislature <br />intended to allow a successor operator to piggy-back on the tenn of the prior operator's permit, it <br />could have done so. It did not. Therefore, C.R.S. §34-32.5-110(5)(a) applies to a~ operator, <br />including successor operators like the Applicant. <br />Likewise, when a statute specifies certain situations in which it is to apply, it must be <br />construed to exclude all other situations not specified. Holliday v. Bestop, Inc., 23 P.3d 700, 706 <br />n. 5 (Colo. 2001) (recognizing the rule of statutory construction "expression unius est exclusion <br />alterius," the expression of one thing implies the exclusion of the other); Beeghly v. Mack, 20 <br />P.3d 610, 613 (Colo. 2001); Holdridge v. Bd. ofEduc., 881 P.2d 448, 450 (Colo. App. 1994}. By <br />expressly not articulating any exceptions to the requirement that a permittee operate in <br />compliance with its permit for two years before applying for a permit conversion (i.e., excluding <br />successor operators from that requirement), the General Assembly clearly intended that <br />successor operators not be so excluded. Any other interpretation of the statutory provision reads <br />additional language into the Act, which is impermissible. <br />At the June 14, 2006 Board meeting, the DMG argued that, because Rule 1.11.2 states <br />that "the original Permittee cannot convert a Permit unless the permit has been in existence for 2 <br />consecutive years," C.R.S. §34-32.5-110(5)(a) is not inconsistent with the Act. Read in <br />conjunction with C.R.S. §34-32.5-110(5)(a), that is true. The Rule simply confirms that the <br />original holder of a permit cannot convert it until it has been in existence for at least two years. <br />It does not state, as the DMG appears to argue, chat a successor operator is eligible to convert a <br />permit if it holds such permit for a lesser period of time even though the original permittee held it <br />for two consecutive years. Indeed, the Rule is silent in that regard. In addition, by its plain <br />~~~ne - ozvasoioooom - ssvzn . ~ 3 <br />
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