2006-12-04_REVISION - M1978314 (2)

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Here, King Mountain seeks to expand a mine that the Board authorized over twenty-eight • years ago. The two-year restriction expired in November 1980, two years after the November 22, 1978 issuance of the Section 110 permit. Requiring King Mountain to wait two years after it acquired the mine to submit its Section 112 application serves no rational purpose. If King Mountain chose to propose a new large mine in a new location, Section 112 would not require King Mountain to wait two years. 3. The Board's Reasonable Interpretation of Section 110(51(a) Is Controlling The Board is authorized to adopt and promulgate rules to implement the Act. Colo. Rev. Stet. § 34-32.5-108. Under that authority, the Board adopted Rule 1.11.2(1) and interpreted the two-year provision of Section 110(5)(a) to provide that "the original Permittee cannot convert a Permit unless the permit has been in existence for two consecutive years." Rule 1.11.2(1) (emphasis added). King Mountain is not the original permiee of the decades old mine. Under Section 110(5)(a) and Rule 1.11.2(1), King Mountain is not subject to the two-year waiting period and the Board has jurisdiction over this proceeding. The Board's interpretation of the two-yeaz provision in Rule 1.11.2(1) conforms to the Act. The Boazd's rule reflects awareness of the difference between the Section I 10 and Section 112 permitting processes, and the significance of the statutory two-year provision. In an April 11, 2000 memorandum, the Board implemented an internal policy prohibiting the same permitee • from operating two side-by-side 110 Limited Impact operations so that an applicant cannot string together small mines in order to avoid the more rigorous Section 112 review. Division of Reclamation Mining & Safety Mem., Side-Bv-Side 110 Limited Impact Mining Operations, (April 11, 2000). The Boazd's rule and policies give effect to the Legislature's intent that the expedited process under Section 110 not turn into a short cut for mine applicants to get fast track approval for ten acre segments of a lazge mine that should have been proposed under Section 112. The rule is easily a permissible construction of the Act. The Objectors are wrong to contend that it somehow "conflicts" with the Act. Motion at 4. At best, the Objectors have identified an alternate reading of the statute. That does not establish that their interpretation prevails, or that the Board lacks jurisdiction. The Board adopted a reasonable interpretation of Section 110(5)(a) in Rule 1.11.2(1). Even assuming that the Objectors' interpretation is reasonable -which it is not -the Boazd's reasonable interpretation of its own statute prevails over alternate reasonable interpretations of the Act. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) ("Our task is not to decide which among several competing interpretations best serves the regulatory purpose."); Colo. State Personnel Bd. v. Dept of Corrections, Div. of Adult Pazole Supervision, 988 P.2d 1147, 1150 (Colo. 1999) ("[W]e will defer to the agency's construction when the statute may be given more than one reasonable interpretation and the agency has employed its expertise to select a particular interpretation."); Smith v. Myron Stratton Home, 676 P.2d 1196, 1201 n.4 (Colo. 1984) (when a statute can be interpreted in more than one way, the agency's construction prevails); Wine & ~irits Wholesalers of Colo., Inc. v. Colo. Dept of Revenue, 919 P.2d 894, 897 (Colo. Ct. App. • 1996) (same}.