2006-12-06_REVISION - M1978314 (2)

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~a-c~- ~~; ~~~ ~vsm : ~4 ~ C BEFORE THE MINED LAND RECLAMATION BOARD ~ "~~ STATE OF COLORADO IVISION OF RECLAMATION, MINING AND SAFETY'S BRIEF IN OPPOSITION TO ~HE MOTION TO DISMISS KING MOUNTAIN GRAVEL, LLC'S CONVERSION CONSTRUCTION MATERIALS APPLICATION REGARDING PERMIT NO. M-1978-314 FOR LACK OF SUBJECT MATTER JURISDICTION KING MOUNTAIN, GRAVEL, LLC; KING MOUNTAIN SAND AND GRAVEL MINE, FILE NO. M-1978-314; RECONSIDERATION OF CONVERSION APPLICATION APPROVAL The Division of Reclamation, Mining and Safety ("DBMS" or "Division") by and through its undersigned counsel, hereby submits this brief in opposition to Sleeping Lion Ranch, LLC, d/b/a Baz-A-Ranch; ER Ranch, LLC; and Egeria Park, LLC's (collectively, the "Objectors") Motion to Dismiss King Mountain Gravel LLC's ("King Mountain") Conversion Construction Materials Application Regarding Permit No. M-1978-314 for Lack of Subject Matter Jurisdiction ("Motion"). As grounds therefore, DBMS states as follows: INTRODUCTION The Objectors' Motion is premised on their assertion that holding a permit for two yeazs is a jurisdictional requirement. That is, if a permit is not held for two yeazs, the Objectors assert that the Division and the Board have no jurisdiction to even consider or act on the application. This assertion is wrong. Regardless of the interpretation of the two-yeaz requirement, it is a condition upon which the Division or Boazd may deny an application for conversion. It is not a prerequisite for the Board or Division to have jurisdiction to act on the application. In addition, agencies are granted broad deference in interpreting their own statutes and rules, and the Board reasonably interpreted C.R.S. § 34-32.5-110(5) as requiring a permit to be in existence for two years, not the operator to have held the permit for two yeazs prior to seeking conversion. Finally, assuming for azgument's sake that the Objectors' interpretation of C.R.S. § 34-32.5-110(5) is correct, the issue is now moot because King Mountain has held the 110 permit for over two years. For these reasons, the Objectors' Motion should be denied, and the Boazd should conduct the reconsideration hearing in January 2007. FACTS The Mined Land Reclamation Boazd ("MLRB" or "Board") originally issued Permit number M-1978-314 on November 22, 1978, to Routt County, Colorado. The permit was granted pursuant to C.R.S. § 34-32.5-110, which governs applications for mining operations conducted on less than ten acres. These permits are commonly refereed to as "110 permits." On June 24, 1987, the Board approved the transfer of the 110 permit to Frank W. Hewes, and on September 24, 2004, a transfer from Mr. Hewes to the current permittee, King Mountain, was approved.