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/"f~: r'lLR.4 RECEIVED ~ i/~-~,,f,.,,r~,,,...~,,.,F- ~~: ~~~ ~~~' LiK~e~- FE627 2004 ~ cc: W I~E~}iHP Division st Minerals and Geology BEFORE THE MINED LAND RECLAMATION BOARD STATE OF COLORADO Case No. Permit No. M-1991-146 1/ MOTION TO DISMISS IN THE MATTER OF ZMK CONSTRUCTION INC. The Colorado Division of Minerals and Geology ("DMG" or "Division"), by and through the Colorado Attorney General's Office, moves to dismiss an appeal filed by James O. Patterson concerning DMG's decision to not bring an enforcement action in regard to the ZMK Gravel Pit, for the following reasons: Factual Backeround On June 12, 2003, James Patterson, filed a complaint to DMG concerning the ZMK Gravel Pit. Mr. Patterson is a land owner who lives 400 feet upstream of the pit. His complaint alleged erosion damage to his property and to the Uncompahgre River. On June 13, 2003, based on Mr. Patterson's complaint, Wallace Erickson of DMG inspected the site. Mr. Erickson's inspection report is attached. He found that there was insufficient evidence to establish that the alleged damage was caused by ZMK's mining operation. In his inspection report, Mr. Erickson refers to 2 CCR 407-4, Rule 4.1.11, which is entitled Administrative Appeal of an Office Decision. On November 11, 2003, Mr. Patterson, d\b\a The Uncompahgre Land Partners, LLC sent a letter to DMG, in which he disagreed with portions of Mr. Erickson's inspection report and asked DMG to schedule a hearing before the Mined Land Reclamation Board ("Board"), stating as a citizen, he was entitled to Board review. DMG set this matter on the Board's March 2004 meeting agenda. Basis for Motion to Dismiss Rule 1.4.11 does not apply to a situation, such as here, in which DMG, in its prosecutoria] discretion, decides to not bring an enforcement action. Accordingly, Mr. Patterson's appeal should be dismissed. The Colorado General Assembly authorized only DMG and the Board to handle enforcement actions; the Colorado Land Reclamation Act for the Extraction of Construction Materials ("Construction Materials Act") contains no provisions which allow a citizen to bring an