2006-12-06_REVISION - M1978314 (2)

Home Browse Search

1950) (citing Brav v. Trower, 87 Colo. 240, 249 286 P. 275, 278 (Colo. 1930)). When a case is moot, courts will not consider the merits of the case. Colo. Dept of Con. Ex rel. Miller v. Madison, 85 P.3d 542 (Colo. 2004); In re Marriage of Balanson, 25 P.3d 28 (Colo. 2001). Here, King Mountain became the permittee of the 110 permit on September 24, 2004; therefore, even if the Objectors' interpretation of the statute is accepted, King Mountain would have been eligible to submit a conversion application on September 24, 2006. As it is now almost three months past the two-year anniversary date and the substantive issues and objections concerning the application have not yet been heard by the Boazd, there is no controversy concerning whether King Mountain waited long enough to apply; the issue is moot. It is also important to note that any policy justifications for prohibiting a permittee from applying for a conversion of a 110 permit until it has been held for two years have been met: the Board, the Division and the Objectors have at their disposal more than two full years of historical data to review and comment upon prior to the conversion application hearing. Therefore, the Objectors' Motion should be denied due to mootness, and the reconsideration hearing should be allowed to proceed as scheduled. CONCLUSION The Board and Division have been vested by the General Assembly with the subject matter jurisdiction to review the King Mountain conversion application. The two-year requirement is not a prerequisite for the Division or the Board to have jurisdiction over a permit application. It is merely a ground upon which to deny a permit. Moreover, the application was properly reviewed in March of 2005, based on the Board's properly and reasonably promulgated rule that the two-yeaz requirement applies to the length of time the pennit has existed. Here, the permit had been in existence for 27 years when the application was considered. Finally, regardless of how the statute is construed, the issue is now moot because King Mountain has held the permit for over two years. For these reasons, the Motion to Dismiss should be denied. Respectfully submitted this ~ d y of December, 2006. JOHNSUTHERS Attorney General ff. i~l~ TANY,~7. LIGHT, #r}3951* Assistant Attorney General Natural Resources and Environment Section Attorneys for the Division of Reclamation, Mining and Safety *Counsel of Record 1525 Sherman Street, 5th Floor Denver, CO 80203 Tele. (303) 866-3782 Fax (303) 866-3558