2006-06-12_REVISION - M1978314 (2)

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Mined Land Reclamation Board June 12, 2006 Page 4 plain statutory language, King Mountain may not convert the 110 Permit to a 112 Permit until it has operated the gravel pit for a minimum of two years -- i.e.. until September 10, 2006, at the earliest. The Ranch Owners anticipate that King Mountain will azgue that C.R.S. §34-32.5- 110(5)(a) applies only to the original permittee. In particular, King Mountain may claim that Rule 1.11.2 states that "the original Permittee cannot convert a Permit unless the permit has been in existence for 2 consecutive years." Read in conjunction with C.R.S. §34-32.5-110(5)(a), however, this Rule is not inconsistent with the Act. Rather, it simply confums that the original holder of a permit cannot convert it until it has been in existence for at least two years. It does not state that a successor operator is eligible to convert a permit if it holds such permit for a lesser period of time even though the original permittee held it for two consecutive years. Indeed, the Rule is silent in that regazd. However, to the extent Rule 1.11.2 is deemed inconsistent with the Act, C.R.S. §34-32.5-110(S)(a) governs. Martinez v. Dept of Personnel & Admin. Executive Office, 2006 WL ]028900 (Colo. App. 2006) (holding that, unless expressly or impliedly authorized by statute, administrative rules and regulations are without force and effect if they add to, change, modify, or conflict with an existing statute); Cartwright v. State Bd. of Accountancy, 796 P.2d 51 (Colo. App. 1990) (holding that an administrative agency regulation may not modify or contravene an existing statute, and any regulation that is inconsistent with or contrary to statute is void). In addition, the Boazd must give effect to the intent of the legislature. State v. Nieto, 993 P.2d 493 (Colo. 2000). That intent is determined by examining the plain language of the statute. Colorado Water Conservation Bd. v. Upper Gunnison River Water.Conservancy Dist., 109 P.3d S8S, S93 (Colo. 2005)(quoting Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215, 1218-19 (Colo. 2002))("[I]f courts can give effect to the ordinary meaning of the words adopted by a legislative body, the statute should be construed as written since it may be presumed that the General Assembly meant what it clearly said:'). In this case, the plain language of C.R.S. §34- 32.5-110(S)(a) authorizes only those gravel pit operators who have held permits for over two years to request conversions. The statute cleazly applies to any operator, not just the original permittee. Conversely, anyone else, including a successor operator, who has held a permit for less than two years is not eligible to apply for a conversion. Had the legislature desired or intended to allow successor operators to piggy-back on the term of the prior operator's permit, it could have done so. But it did not. Therefore, this Board is required to give effect to C.R.S. §34-32.5-110(5)(a) as written, and apply it to a~ operator, including successor operators. Likewise, when a statute, such as the Act, specifies certain situations in which it is to apply, it must be construed to exclude all other situations not specified. Holliday v. Bestop, Inc., 23 P.3d 700, 706 n. 5 (Colo. 2001) (recognizing the rule of statutory construction "expression unius est exclusion alterius," the expression of one thing implies the exclusion of the other); Beeghly v. Mack, 20 P.3d 610, 613 (Colo. 2001); Holdridge v. Bd. of Educ., 881 1'.2d 448, 450 (Colo. App. 1994). By expressly not articulating any exceptions to an operator's ability to apply for a permit conversion i.e., excluding successor operators from that requirement), the General Assembly cleazly intended to require ~ operator to hold a permit for at least two consecutive \\\DH ~ E7080N081 - 288818 vl