2007-01-09_REVISION - M1978314 - Laserfiche WebLink

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Jan. 9. 2007 4:24PM James Wm Stovall, PC N P. BEFORE THE MINED LAND RECLAMATION BOARD STATE OF COLORADO B70RK PARTIES' COMMENT ON PROPOSED "FINDING OF FACTS, CONCLUSIONS OF LAW AND ORDER" RESPECTING THE PENDING MOTION TO DISMISS FOR WANT OF NRISDICTION KING MOUNTAIN, GRAVEL, LLC; KING MOUNTAIN SAND AND GRAVEL MINE, FILE N0. M-1978-314; RECONSIDERATION APPLICATION APPROVAL The Bjork parties respond to the request to comment on the proposed Finding of Facts, Conclusions of Law and Order, and state their position by way of this comment, as follows: The proposed order, if implemented, exceeds the Board's jurisdiction by disregarding clear legislative enactment requiring that "any operator" hold its 110 pemtit for two consecutive years prior to filing a 112 conversion application. CRS 34-3Z.5- I10(5)(a). , While District Courts generally extend great weight to an administrative agency's construction of regulations implementing legislative enactments, such deferenoe is inappropriate if the regulation, rule or construction is inconsistent with the underlying legislative etactment. Timberline Sawmill v, Indust. Comm., 624 P.2d 367 (Colo.~Ipp. 1981) In the subject case, the statute expressly requires a two year holding period as a condition to "any" operators conversion application. That is, the two year period is a predicate to the application •- and is not merely a condition to the grant of a permit. Accordingly, the Bjorks submit that the proposed Order will not be afforded judicial deference in the event of a judicial challenge -- because the proposed Order simply disregards the controlling legislative enactment. Moreover, the subject rule merely provides that the two year holding period applies to the "original permittee." Corutruction Materials Rule 1.11.2(1). The Rule does provide that the statutory two year period applies solely to the original pemutee.