2006-12-04_REVISION - M1978314 (2)

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tVL-l CtJ -o I I Z- ~ -ZC~Io ~+~'.f=Aeo~e~Paa~~n • ~EFORE THE MINED LAND RECLAMATION BOARD STATE OF COLORADO RESPONSE IN OPPOSITION TO MOTION TO DISMISS KING M0IJNTAIN GRAVEL, LLC'S CONSTRUCTION MATERIALS APPLICATION, PERMIT N0. M-1978-314 IN THE MATTER OF THE RECONSIDERATION OF AN APPLICATION FOR APPROVAL OF A SECTION 112 RECLAMATION PERMIT, KING MOUNTAIN GRAVEL, LLC, FILE NUMBER M-1978-314 King Mountain Gravel, LLC ("King Mountain") submits its Response in Opposition to the Motion to Dismiss filed by the Sleeping Lion Ranch d/b/a Bar-A-Ranch, LLC, ER Ranch, LLC, and Egeria Park, LLC (collectively, the "Objectors"). For the reasons stated below, King Mountain respectfully requests that the Colorado Mined Land Reclamation Board ("Board") deny the Motion to Dismiss, and allow this matter to proceed to the scheduled January 10-I 1, 2007 Board hearing on King Mountain's financial warranty. ~ BACKGROUND • This matter involves a grave] mine in Routt County, Colorado that the Board authorized over twenty-eight years ago. On November 22, 1978 the Board issued a Section 110 Permit authorizing limited impact gravel mining on less than ten acres under Colo. Rev, Stat. § 34-32- 110 (now § 34-32.5-110 ("Section 110")). On September 10, 2004, King Mountain became the authorized operator of the gravel mine. Two months later -and nearly three decades after the Board authorized the mine -King Mountain applied to the Board for a Section 112 Permit to convert the mine to an up to 341 acre mine under the Colorado Land Reclamation Act for the Extraction of Construction Materials ("Act"), Colo. Rev. Stat. § 34-32.5-112 ("Section 112"). The Board approved King Mountain's application on March 15, 2005, and authorized King Mountain to enlarge the mine under a Section 112 Permit, contingent on King Mountain filing a financial warranty within one year. THE BOARD HAS JURISDICTION TO AUTHORIZE A 28-YEAR OLD MINE TO EXPAND The Objectors claim that the Board does not have "subject matter jurisdiction" to consider a request from an operator of a decades-old mine to expand that mine unless that operator has held the permit for two yeazs. They assert that Section 110(5)(a) of the Act "prohibits the conversion of a Section 110 permit to a Section 112 permit until the operator/applicant has conducted the related gravel pit operation for at least two consecutive • 'The Board has scheduled a hearing on January 10-11, 2007 to consider King Mountain's financial warranty. This Response addresses the Objectors' Motion to Dismiss, and does not address matters scheduled for hearing on January 10-11, 2007.