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SCO?T SMITH ID~9707283100 SEP 1~0 1434 No .001 P.03 '~ .t. • ~' Letter to Thomas G. Kennedy re: Pathfinder Pit September 8, 2000 Page Two Lisa A. Lett, attorney for Public Service Company, in a letter dated December 7, 1999, advised your client to, "Cease using the roadway until Pathfinder is successful in moving the roadway to a different location on the Property that does not interfere with PSCo's Facilities and rights..." Since this letter was addressed to your client, this office assumes that a copy has been provided to you. From Mr. Smith's public statements at various Board meetings, it was my understanding that he has acknowledged, and does not dispute, that vazious construction materials contractors have used the haul road at issue to supply gravel, fill, and other mined products to customers in the area, This office is unawaze of a visit to the Pathfinder Pit site that your letter alleges took place on Friday, August 18, 2000. County representatives, along with DMG personnel and private landowners, participated in a field walk along a trail located immediately adjacent to the Lake Fork on that date. In the absence of any signage indicating that the property traversed was located within the Pathfinder pazcel, it was the participants' understanding that they did not enter your client's property at any time during their walk. Since a quorum of the Board did not participate in the August 18, 2000 field walk, the activity did not constitute a meeting of the Board for which public notice is required under the Colorado open meetings statute. Since the field walk did not involve any meeting or action of the Board, it cleazly did not constitute aquasi - judicial action. Based upon the available documentation, it has been, and continues to be, the County's understanding that the location of the penstock for the Ames' hydroelectric plant has remained essentially unchanged for over forty yeazs. As such, the penstock appears to qualify as apre-existing nonconforming historic land use under both section 30-28-120 and 30-28-127, C.R.S. Any repairs or alterations to the penstock, such as replacing ~(,~ sections of steel pipe with fiberglass or similar materials, would not affect its zoning status. Furthermore, representatives of the Federal Energy Regulatory Commission have advised that their agency has plenary jurisdiction over the operation and maintenance of the Ames hydroelectric facility, including the penstock. Applicable federal statutes and regulations appear to substantiate FERC's jurisdictional claim. This office is unawaze of Board direction where San Miguel County asserts jurisdiction over the operation, repair, or maintenance of the penstock.