2006-12-06_REVISION - M1978314 (2)

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Section 34-32.5-105 states that the Division and Board shall administer this article. Under section 34-32.5-107, the Boazd has all the powers enumerated in section 34-32-107. Sections 34-32.5-109 and 110 discuss the necessity of an operator to apply for a permit in the firs[ instance, and the procedures for doing so, including review by the Boazd and the Division. Finally, section 34-32.5-]08 provides that "[t]he boazd may adopt and promulgate reasonable rules respecting the administration of this article." The Division had subject matter jurisdiction to consider King Mountain's conversion application in March of 2005, and the Board has subject matter jurisdiction to conduct the reconsideration hearing at the January 2007 Board meeting, because the Division and the Boazd acted and are acting within the scope of their enabling statutes. The Act requires the Division and the Board to act on applications. See C.R.S. § 34-32.5-110. In addition, Rule 4.1(2), which the Board had the authority to promulgate pursuant to C.R.S. § 34-32.5-108, requires the Board to conduct the reconsideration hearing: "[i]f these Warranties (financial warranties] aze not received within one calendar year of approval of an application for any new permit, amendment or conversion, the Board shall hold a hearing." (Emphasis added). Conducting the reconsideration hearing is necessary in order for the Board to "carry out and administer" the Act's provisions. See C.R.S. § 34-32.5-104. Moreover, the two-year requirement prior to submitting a conversion application is, regardless of interpretation, merely a ground for the Division or the Board to deny an application, not a jurisdictional requirement.' The statute itself does not state that the two-year provision is a requirement for the Board or the Division to have jurisdiction over an application. In fact, if the Division had denied the application on that ground, the Objectors most likely would not now be arguing that the Division lacked subject matter jurisdiction to deny the application. The Division did not lack subject matter jurisdiction -the Division merely rendered a decision that the Objectors do not like. To conclude, the Objectors' argument regarding the two year requirement fails. The two year requirement, regardless of how it is interpreted and implemented, is not a jurisdictional requirement; it is a ground upon which to deny a permit. Therefore, the Objectors' Motion should be denied, and the reconsideration hearing should proceed. II. The Board reasonably interpreted C.R.S. 6 34-32.5-110(5)'s two-year requirement to amply to the existence of a mining~ennit. not to the length of time an onerator has held thepermit. Colorado agencies aze afforded great deference in interpreting their own statutes and rules. C.R.S. § 24-4-10(7). In Miller v. Colo. Dept of Health Care Polic~& Fin., 75 P.3d i 167, I I69 (Colo. App. 2003), the court explained "[i]nterpretation of a regulation by the agency chazged with its enforcement is generally entitled to Beat deference and must be accepted if it 'The Division does not believe that it should have denied the application on this ground. The Division believes the Boazd properly promulgated Rule 1.11.2(1), and that the Division properly applied the Rule to the conversion application.