2006-12-06_REVISION - M1978314 (2)

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On November 23, 2004, King Mountain filed a conversion application in order to increase the permitted area from 9.9 acres to 341 acres. King Mountain provided proper notice of the application pursuant to the notice provisions mandated by Rule 1.6 of the Construction Materials Rules ("Rules or "Rule"), and no objections were received. The Division considered and approved the application on March I5, 2005. The permit would issue once King Mountain provided an adequate financial warranty for the increased operation within 365 days, pursuant to Rule 4.1(2). King Mountain did not timely provide the financial warranty, and therefore the application was subject to a Board reconsideration hearing and to the notification and comment provisions of Rule 1.6. The Objectors submitted objections during the comment period, and on July 27, 2006 submitted the Motion. On August 1 b, 2006, King Mountain and the Objectors filed a Stipulated Motion to Continue the Hearing and Stay Proceedings, which the Board granted, in order to allow King Mountain time to learn whether it would receive a grant from the Colorado Department of Wildlife ("CDOW") for a conservation easement on the property at issue. If King Mountain received the funds, it indicated it would withdraw its application. Recently, King Mountain learned it did not receive the grant from CDOW, and on November 1, 2006, the Stay was lifted and the Motion is now before the Board. ARGUMENT I. The Objectors' premise that the two-kear requirement is jurisdictional is C incorrect. The two-veaz requirement is a ground ugon which to deny the application. An agency's subject matter jurisdiction is bestowed upon it by its enabling statute, which defines both the breadth and limits of that agency's powers. Colo. Div. of Em~v. Colo. Ind. Comm., 665 P.2d 631, 633 (Colo. App. 1983) ("the duties and powers of administrative agencies are determined and limited by the statutes by which they aze created"). Moreover, district courts prefer that an agency interpret its enabling statute in the first instance, even if questions of pure law aze involved, "in order to provide the court with the benefit of the agency's considered interRretation of its enabling statue." Kendal v. Cason, 791 P.2d 1227, 1229 (Colo. App. 1990) (emphasis added). An agency's actions aze void only if the agency acts outside the scope of its delegated powers. Colo. Div. of Emp., 665 P.2d at 633. Here, the enabling statute is the Colorado Land Reclamation Act for the Extraction of Construction Materials ("Act"), §§ 34-32.5-101 et seg. Section 34-32.5-104 states in pertinent part: [i]n addition to the duties and powers prescribed by the provisions of article 4 of title 24, C.R.S., the office and the board have the full power and authority to carry out and administer the provisions of this article.