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December 30, 2004 <br />Page 3 <br />As you aze aware, the Act states that it is proper for the Boazd to deny a permit <br />application if the "proposed mining operation ... is contrary to the laws or regulations of this state <br />or the United States, including but not limited to all federal, state, and local permits, licenses, <br />and approvals, as applicable to the specific operation." C.R.S. § 34-32.5-115(4)(d)(emphasis <br />added). This requirement is restated in Construction Material Rule 6.4.]3, which requires an <br />applicant to identify the permits, licenses and approvals the applicant will need in order to <br />Conduct the proposed mining operation. Thus, compliance with this requirement is <br />unquestionably mandatory. <br />As mentioned by Mr. Petersen, the local permits, licenses, and approvals applicable to the <br />proposed mining operation most certainly include a SUR permit from Gilpin County. The <br />property in question is zoned part of the Forestry District, where mining is not a use by right. See <br />Gilpin County Land Use Code, Section 3.1, attached hereto for your reference. Consequently, it <br />is a use by special review, which means that mining may be permitted on a specific property but <br />only upon approval from the Boazd of County Commissioners. See Gilpin County Land Use <br />Code, Section 6. l (d), attached hereto for your reference. <br />There is no evidence to suggest that the applicant has taken any of the steps necessary to <br />initiate the SUR permit process, and Mr. Petersen's letter confirms the fact that the applicant has <br />thus far failed to comply with County regulations. The Board is, therefore, compelled to deny <br />the application as contrary to local permits, licenses, and approvals. <br />Despite Mr. Gesso's suggestion to the contrary, the Board is well within its grant of <br />authority to require the applicant to obtain the necessary county SUR permit before granting the <br />requested permit. In fact, the Board is compelled to do so by C.R.S. § 34-32.5-115(4)(d), <br />Construction Material Rule 6.4.13, and controlling case law. -n C&M Sand &Gravel v. Board of <br />County Commis of the County of Boulder, 673 P.2d 1013 (Colo. App. 1983), the Colorado court <br />of appeals decided this very issue, and the court's decision on the matter is diapositive. <br />The court ruled that the state's regulation of mining through the Reclamation Act, C.R.S. <br />§ 34-32-101, et seq., a predecessor and parallel act to the Reclamation Act for the Extraction of <br />Construction Materials, did not preempt the county's authority to also regulate mining by <br />requiring a special use permit for an aggregate mining operation. The court found that under a <br />provision substantially similaz to C.R.S. § 34-32.5-115(4)(d), the Reclamation Act expressly <br />acknowledged and required local approval before a state mining permit could be granted. C&M <br />Sand &Gravel v. Board of County Commis of the County of Boulder, 673 P.2d at 1017. The <br />court's language is instructive: <br />The Act preempts only the authority of local government to set performance <br />standazds for mined land reclamation activities, but does not prohibit local <br />regulation by permit of all aspects of land use for mining, including the location <br />of mining operation and related reclamation activities and other environmental <br />and socioeconomic impacts. Reading [state and local regulations] together, we <br />ni3nine <br />Q:IUSERSIBHIf/MGVMINING APPLICATIOMOBJECTIONLETIER • L01. DOC <br />