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BEFORE THE MINED LAND RECLAMATION BOARD <br />STATE OF COLORADO <br />FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECLARATORY ORDER <br />IN THE MATTER OF THE PETITION FOR DECLARATORY ORDER BY GARY W. SMITH, SMITH <br />FARMS SITE, FILE NO. M-2002-102. <br />THIS MATTER came before the Mined Land Reclamation Boazd on September 18, 2002 at Denver, <br />Colorado for hearing on a Petition for Declaratory Order, pursuant to Boazd Construction Materials Rule 2.5. <br />The Petitioner did not appeaz. Russ Means appeazed on behalf of the Division of Minerals and Geology <br />(Division). The Boazd, having considered the Petition and Responses thereto, and the azguments of [he parties, <br />and having been otherwise fully informed in the premises, hereby finds and concludes as follows: <br />FINDINGS OF FACT AND CONCLUSIONS OF LAW <br />1. Petitioner seeks an order from the Boazd declaring that removing a spoil pile from his farm does not <br />constitute mining for which a permit would be required. The proposed site is located on Section 35, <br />T15S, R9W, 6`sP.M., Delta County, Colorado. <br />2. The Board has jurisdiction over the subject matter of this action and the parties hereto, in accordance <br />with C.R.S. § 35-32.5-101, et seq. <br />3. The Boazd entertains declaratory order petitions in accordance with C.R.S. § 24-4-105(11). <br />4. In accordance with Construction Materials Rule 2.5.3(a), it is appropriate for the Boazd to rule on the <br />petition because it would remove uncertainties as to whether the Petitioner's activities constitute a <br />mining operation that is subject to pemutting in accordance with § 34-32.5-109, C.R.S. <br />5. The Division was granted party status in accordance with Construction Materials Rule 2.5.5(1). <br />6. The Petitioner desires to remove piles of cobbles, gravel and soil excavated in order to construct a <br />drainage ditch on his farm. He estimates the quantity at approximately 15,000 yards. The Petitioner <br />states that the material was excavated approximately 50-60 years ago. All material is located on <br />property owned by the Petitioner. The Petitioner does not plan to excavate any material from its natural <br />state. He intends to use the material for roadbase on his farm, and sell any remaining material. The <br />Petitioner desires to remove the material in order to enlarge his pasture. <br />