2006-12-04_REVISION - M1978314 (2)

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• The Objectors contend that their interpretation must prevail because it is based on the "plain language of the statute." Motion at 3. They overlook that the Boazd's interpretation of Section 110(5)(a) in Rule 1.11.2(1) also gives effect to the plain language of the statute. Further, the Objectors fail to recognize that the Board's interpretation merits legal deference. ~, Smith v. Farmers Ins. Exch., 9 P.3d 335, 340 (Colo. 2000) (Colorado courts "give great deference to an agency's interpretation of the statute, looking only to whether the agency's regulation is based on a permissible construction of the statute."); Travelers Indemnity Co. v. Barnes, 552 P.2d 300, 303 (Colo. 1976) ("[C]onstruction of a statute by administrative officials charged with its enforcement shall be given great deference by the courts."). 4. The Objectors' Interpretation of the Act is Unreasonable The Objectors' interpretation of Section 110(5)(a) frustrates the purposes and goals of the Act. First, if the Objectors are right, Section 110(5)(a) creates a perverse incentive to create large mines in new locations rather than enlazge existing small mines. The Act allows an applicant who wants to locate a large mine in an undeveloped place to submit a Section 112 application at any time. In the Objectors' view, the same applicant who buys an existing small 110 Permit mine in order to grow it into a lazge mine must wait two yeazs to apply for a Section 112 Permit. This creates an obvious incentive to apply for lazge mines under Section 112 at undeveloped locations rather than expand existing small mines into large ones. • Second, if a 110 Permit mine cannot submit an expansion application every time the mine is sold, it unreasonably restricts the mine operator's property rights. Did the Legislature intend to subject Section 110 permits to automatic two-year "no expansion" periods upon sale? Nothing in the Act suggests that the Legislature intended that consequence. Third, the Objectors' interpretation places an unintended substantive restriction on the Board's authority to issue reclamation permits. The two-year limitation hampers the Board's ability to carry out its legislative mandate. The general assembly declared that "the extraction of construction materials for government and private enterprise and the reclamation of land affected by such extraction are necessary and proper activities that aze compatible." Colo. Rev. Stat. 34- 32.5-102(1). The Act should be interpreted in a way that facilitates the Boazd's ability to authorize mining activities rather than inhibiting it. Fourth, the Objectors state that the purpose behind applying the two-year limitation to King Mountain and every other successor operator of a decades-old mine is to prevent "the man on the street" from acquiring a mining operation and enlarging it before that operator is known to have the requisite ability, experience, and financial security. Motion at 4. That argument fails. Every applicant under Section 112, including applicants who seek to convert existing Section 110 small mines, must demonstrate that they aze qualified. See Colo. Rev. Stat. § 34-32.5-I 12. In the Objectors' view, Section 112 applicants who convert Section 110 mines aze presumed to be less trustworthy than those who file a Section 112 application for a new location. There is no • reason to impose atwo-year limitation on one and not the other. 6