Brubaker v. Board of County Com'rs, El Paso County

• Decision Date: 13 September 1982
• Docket Number: No. 81SA186,81SA186
• Citation: 652 P.2d 1050
• Parties: Earl J. BRUBAKER, Rexford L. Mitchell, and Valco, Inc., Plaintiffs-Appellants, v. The BOARD OF COUNTY COMMISSIONERS, EL PASO COUNTY, Defendant-Appellee, and The Springs Area Beautiful Association, Intervenor-Appellee.
• Court: Colorado Supreme Court

Page 1050

652 P.2d 1050

Earl J. BRUBAKER, Rexford L. Mitchell, and Valco, Inc., Plaintiffs-Appellants, v. The BOARD OF COUNTY COMMISSIONERS, EL PASO COUNTY, Defendant-Appellee, and The Springs Area Beautiful Association, Intervenor-Appellee.

No. 81SA186.

Supreme Court of Colorado,

En Banc.

Sept. 13, 1982.

Lohf & Barnhill, P.C., Kenneth E. Barnhill, Jr., Rodrick J. Enns, Denver, for plaintiffs-appellants.

Charles E. Berry, County Atty., Colorado Springs, David Engdahl, Tacoma, Wash., for defendant-appellee.

Cole, Hecox, Tolley, Edwards & Keene, P.C., Daniel P. Edwards, Stuart W. McKinlay, Colorado Springs, for intervenor-appellee.

Charles F. Cook, Mary Jane C. Due, Washington, D.C., for amicus curiae American Mining Congress.

Carol E. Dinkins, Asst. Atty. Gen., Jacques B. Gelin, Edward Shawaker, James P. Leape, Washington, D.C., for amicus curiae United States of America.

Arnold & Porter, James J. Sandman, Robert H. Klonoff, Washington, D.C., Arnold & Potter, Norton F. Tennille, Jr., Harris D. Sherman, Denver, George E. Benner, Jr., County Atty., Meeker, for amicus curiae Bd. of County Com'rs of Rio Blanco County.

LOHR, Justice.

The appellants, Earl J. Brubaker, Rexford L. Mitchell and Valco, Inc., are holders of unpatented mining claims located on federal land in Teller and El Paso Counties. The appellants sought to conduct limited test drilling on the site of these claims for the purpose of obtaining mineral samples that would be used to determine whether they had made a qualifying discovery of valuable mineral deposits under federal mining law. After receiving the necessary federal approvals for this testing, the appellants applied to El Paso County for a special use permit authorizing the proposed drilling operations in that County. The application was denied by the El Paso County Board of County Commissioners (Board), and the appellants sought review of that action in the El Paso County District Court. The district court affirmed the action of the Board, and an appeal to this court followed. ¹ We conclude that the preemption doctrine precludes the Board from denying permission to the appellants to conduct the test drilling necessary to determine the validity of their claims, and so reverse the judgment of the district court.

I.

The mining claims involved in this case are the subjects of a lengthy and litigious history that must be briefly summarized in order to place the present action in context.

In 1966, 25 mining claims, known as the Avenger Claims, were located in the Pike National Forest in a scenic area visible from U.S. Highway No. 24 west of Colorado Springs. The locators initiated some preliminary exploration work on the claims in 1967, but these activities were soon halted by the United States Forest Service. At the instance of the Forest Service, the United States then brought a contest disputing the validity of the Avenger Claims before the Bureau of Land Management of the Department of the Interior. While this contest was pending, the Forest Service filed an application to withdraw an area including these claims from mineral entry, and obtained a temporary injunction in federal district court prohibiting further exploration on the claims pending resolution of the contest. United States v. Foresyth, 321 F.Supp. 761 (D.Colo.1971). In October 1975 the Interior Board of Land Appeals (IBLA) entered an order in United States v. Foresyth, IBLA 73-166 (Oct. 30, 1975), declaring 18 of the 25 Avenger Claims void because of failure to discover a valuable mineral deposit prior to withdrawal of the lands from mineral entry. ² However, it also concluded that the remaining claims might be valid if certain limestone outcroppings discovered on the claims prior to withdrawal proved sufficient in quantity and quality to be marketable. With respect to those claims, the IBLA authorized core drilling to obtain samples from the sites so that marketability could be determined and the validity of the claims resolved.

The appellants then brought an action in federal district court to require federal authorities to permit implementation of the order of the IBLA, and on July 18, 1978, the district court entered an order directing that the core drilling be allowed to proceed and that the parties jointly move for a partial dissolution of the injunction entered by the federal district court in United States v. Foresyth, supra, to the extent necessary to allow this test drilling. Brubaker v. Andrus, No. 77-W-280, (D.Colo. July 18, 1975). To ensure reasonable protection of the surface resources in connection with this drilling, the district court ordered the appellants to submit a plan of operations for approval by the District Ranger of the United States Forest Service pursuant to 36 C.F.R. § 252.5 (1981). ³

The appellants duly submitted a proposed operating plan to the District Ranger, who prepared an Environmental Assessment Report concerning the core drilling operations. This report considered the effect of the proposed activities on the environment and was based on consultation with federal and local officials and concerned private parties. Finding that there would not be a significant effect upon the quality of the human environment as a result of the proposed operations, the Ranger concluded that an environmental impact statement would not be necessary. See 42 U.S.C. § 4332(2)(C) (1976). Some modifications to the plan, however, were imposed by the Ranger in order to minimize the adverse environmental impact of the drilling activity, and the plan was approved as modified. The approved plan called for the drilling of eleven holes, six in El Paso County and five in Teller County. Each hole was to be approximately an inch and seven-eighths in diameter. The operating plan also required the appellants to post a $1500 reclamation bond to guarantee performance of their obligation to restore the land following the drilling operations. The plan further provided that "[t]he operator, while conducting operations authorized by this Operating Plan, shall comply with the regulations of the U.S. Department of Agriculture and all Federal, State, County, and Municipal laws, ordinances, or regulations which are applicable to the area or operations covered by this plan."

The appellants then applied to the Board for a special use permit authorizing drilling of the proposed test holes in El Paso County. El Paso County considered the permit necessary because the appellants' mining claims in the County are located within an A-2 Agricultural zoning district, and "mineral and natural resources extraction" is a permitted use only if such a permit is obtained. Following hearings before the El Paso County Planning Commission and the Board, the permit application was denied by the Board, primarily on the bases that the proposed drilling operations were inconsistent with the long-range plans adopted for El Paso County and were incompatible with the existing and permitted uses on surrounding properties. ⁴

The appellants then filed a complaint in the El Paso County District Court for review of the Board's action. They asserted: (1) that the Board was without jurisdiction to deny the special use permit because its action impermissibly conflicted with the operation of federal law, particularly the Act of May 10, 1872, ch. 152, 17 Stat. 91 (1872) (codified as amended at 30 U.S.C. §§ 22-54 (1976)) (cited herein as "Mining Law of 1872"), and therefore was preempted, and barred by the Supremacy Clause of the United States Constitution, U.S. Const. art. VI, cl. 2; (2) that the Board's action was not supported by competent evidence and was an abuse of discretion; and (3) that the Board's denial of a permit was an unconstitutional taking of property without just compensation in violation of U.S. Const., amend. V and Colo. Const. Art. II, § 15.

On February 6, 1981, the trial court entered its written findings, conclusions and order upholding the Board's action. It concluded that the preemption doctrine did not preclude the Board's action because the operating plan approved by the District Ranger specifically provided that the operator, in executing this plan, "shall comply with the regulations of the U.S. Department of Agriculture and all Federal, State, County, and Municipal laws, ordinances, or regulations applicable to the area or operations covered by this plan." The court found this express reference to county regulation a basis for the Board's jurisdiction. It further held that the traditional tests for establishing federal preemption were not met, reasoning (1) that the Mining Law of 1872 did not contain an express declaration of intent to preempt state regulation, (2) that this law and related regulations did not create a pervasive scheme that necessarily precluded exercise of any state authority over the subject, (3) that the need for national uniformity in this area was not so great as to require a conclusion that federal authority must be exclusive, and (4) that the application and enforcement of the El Paso County zoning regulations did not interfere with accomplishment of the objectives and purposes of Congress. On this final point, the court concluded that the purpose of fostering the economic development of the nation's resources embodied in the Mining Law of 1872 was tempered by the environmental protection concerns reflected in the National Environmental Policy Act of 1969, Pub.L. No. 91-190, 83 Stat. 852 (1970) (codified as amended at 42 U.S.C. §§ 4321-4347 (1976)), and the Environmental Quality Improvement Act of 1970, Pub.L. No. 91-224, 84 Stat. 114 (1970) (codified as amended at 42 U.S.C. §§ 4371-4374 (1976)). It further reasoned that the El Paso County zoning regulations did not absolutely proscribe mineral development in the area of the contested claims, but merely conditioned such development upon compliance with reasonable legislative standards. The court also concluded that the Board did not abuse its...