Colorado Min. Ass'n v. Bd. of County Com'Rs

• Decision Date: 12 January 2009
• Docket Number: No. 07SC497.,07SC497.
• Citation: 199 P.3d 718
• Parties: COLORADO MINING ASSOCIATION, Petitioner v. BOARD OF COUNTY COMMISSIONERS OF SUMMIT COUNTY, Respondent and Alliance for Responsible Mining and Blue River Group of the Sierra Club, Intervenors-Respondents.
• Court: Colorado Supreme Court

199 P.3d 718

COLORADO MINING ASSOCIATION, Petitioner v. BOARD OF COUNTY COMMISSIONERS OF SUMMIT COUNTY, Respondent and Alliance for Responsible Mining and Blue River Group of the Sierra Club, Intervenors-Respondents.

No. 07SC497.

Supreme Court of Colorado, En Banc.

January 12, 2009.

Moye White, LLP, Paul M. Seby, Matthew A. Morr, Denver, Colorado, Attorneys for Petitioner.

Berg Hill Greenleaf & Ruscitti, LLP, Josh A. Marks, Heidi C. Potter, Boulder, Colorado, County Attorney, Summit County, Jeffrey L. Huntley, Breckenridge, Colorado, Attorneys for Respondent.

Western Mining Action Project, Jeffrey C. Parsons, Roger Flynn, Lyons, Colorado, Attorneys for Intervenors-Respondents.

Ryley Carlock & Applewhite, Brian M. Nazarenus, Mark T. Valentine, Denver, Colorado, Attorneys for Amicus Curiae Climax Molybdenum Company.

John W. Suthers, Attorney General, Cheryl A. Linden, First Assistant Attorney General, Daniel D. Domenico, Solicitor General, Denver, Colorado, Attorneys for Amici Curiae Colorado Mined Land Reclamation Board and Division of Reclamation, Mining and Safety.

Greenberg Traurig, LLP, Douglas H. Benevento, Christopher J. Neumann, Larry G. Hudson, Jr., Denver, Colorado, Attorneys for Amicus Curiae Colorado Association of Commerce and Industry.

Bruce T. Barker, County Attorney, Weld County, Greeley, Colorado, Attorneys for Amicus Curiae Colorado Counties, Inc.

Justice HOBBS delivered the Opinion of the Court.

We granted certiorari in Colorado Mining Association v. Board of County Commissioners of Summit County, 170 P.3d 749 (Colo. App.2007), to determine whether Colorado's Mined Land Reclamation Act ("the MLRA") preempts an ordinance Summit County adopted, invoking its statutorily-delegated land use authority. Summit County banned the use of toxic or acidic chemicals, such as cyanide, for mineral processing in vat or heap leach operations for all zoning districts in the county. The effect of this ordinance is to prohibit a certain type of mining technique customarily used in the mineral industry to extract precious metals, such as gold.

In 1993, the General Assembly examined the use of cyanide in mining operations due to an environmentally devastating incident that occurred at the Summitville Mine. The Assembly ultimately decided to allow the Mined Land Reclamation Board ("the Board") to authorize the use of such mining techniques, but only under the terms of an Environmental Protection Plan designed for each operation sufficient to protect human health, property, and the environment. Summit County's ordinance would entirely displace the Board's authority to authorize the use of such mining techniques.

The General Assembly has assigned to the Board the authority to authorize and comprehensively regulate the use of toxic or acidic chemicals, such as cyanide, in mining operations, a field identified by the legislature, see §§ 34-32-103(3.5), (4.9), -112.5, -116.5, C.R.S. (2008), that Summit County's ban ordinance would occupy, negating the Board's statutory role. We conclude that Summit County's existing ordinance is not a proper exercise of its land use authority because it excludes what the General Assembly has authorized. Due to the sufficiently dominant state interest in the use of chemicals for mineral processing, we hold that the MLRA impliedly preempts Summit County's ban on the use of toxic or acidic chemicals, such as cyanide, in all Summit County zoning districts. Accordingly, we reverse the judgment of the court of appeals, which upheld Summit County's ordinance, and uphold the judgment of the District Court for Summit County, which declared the ordinance to be unenforceable.

I.

In 2004, Summit County enacted ordinance section 3812.04 ("the ordinance") as part of its land use and development codes to provide that: "Any mining or milling operation that utilizes cyanide or other toxic/acidic ore-processing reagents in heap or vat leach applications shall not be allowed in any zoning district."¹ Summit County, Colo., Development Code Ch. 3, § 3812.04 (2004).

Heap leaching is a technology that employs chemical solutions percolated through heaps of ore or tailings to dissolve and extract minerals; vat leaching is a similar process performed in an impermeable vat or tank. In adopting its ordinance, Summit County determined that the use of chemicals for mineral processing, especially the use of cyanide, poses unacceptable environmental and public health risks.² At least four other Colorado counties have also banned the use of cyanide in mining operations.³

The Colorado Mining Association challenged the ordinance in Summit County district court pursuant to C.R.C.P. 57, and obtained a judgment against its validity. The district court ruled that the ordinance is a reclamation standard that the MLRA expressly preempts.

Summit County and two intervenors, the Alliance for Responsible Mining and the Blue River Group of the Sierra Club, appealed the district court's decision, contending that the Summit County ordinance is a legitimate exercise of the county's land use authority. The court of appeals upheld the ordinance on the basis that the MLRA does not expressly or impliedly preempt the ordinance.

The Board contends that amendments adopted by the General Assembly in 1993, in the wake of the Summitville disaster, expressly or impliedly preempt the ordinance. Those amendments specifically regulate chemicals, such as cyanide, utilized for the extraction of minerals. See §§ 34-32-103(3.5), (4.9), -112.5, -116.5. Examining these amendments and taking into account the Board's reasonable interpretation of its own enabling statute, we agree with the Board that the MLRA impliedly preempts the county's ordinance, and we reverse the judgment of the court of appeals.

II.

The General Assembly assigned to the Board the authority to authorize and comprehensively regulate the use of toxic or acidic chemicals, such as cyanide, for mineral processing in mining operations, a field identified by the legislature, see §§ 34-32-103(3.5), (4.9), -112.5, -116.5, that Summit County's ban ordinance would occupy, negating the Board's statutory role. We conclude that Summit County's existing ordinance is not a proper exercise of its land use authority because it excludes what the General Assembly has authorized. Due to the sufficiently dominant state interest in the use of chemicals for mineral processing, we hold that the MLRA impliedly preempts Summit County's ban on the use of toxic or acidic chemicals, such as cyanide, in all Summit County zoning districts.

A. Standard of Review

All party and amicus curiae briefs in this case assert the applicability of preemption analysis, with contrary suggested outcomes in favor of or opposed to Summit County's ordinance. Accordingly, we turn to our preemption case law for the applicable standard of review.

"The purpose of the preemption doctrine is to establish a priority between potentially conflicting laws enacted by various levels of government." County Comm'rs v. Bowen/Edwards Assocs., 830 P.2d 1045, 1055 (Colo.1992). Express and implied preemption are "primarily matters of statutory interpretation." Town of Carbondale v. GSS Props., LLC, 169 P.3d 675, 682 (Colo.2007); cf. Middleton v. Hartman, 45 P.3d 721, 731 (Colo.2002).

Our preemption methodology for resolving state and local legislative conflicts borrows from our cases involving federal preemption analysis. As we have explained, there are various ways in which federal law may preempt state law:

when Congress expresses clear intent to preempt state law; when there is outright or actual conflict between federal and state law; when compliance with both federal and state law is physically impossible; when there is an implicit barrier within federal law to state regulation in a particular area; when federal legislation is so comprehensive as to occupy the entire field of regulation; or when state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.

State Dep't of Health v. The Mill, 887 P.2d 993, 1004 (Colo.1994); see also Brubaker v. Bd. of County Comm'rs, 652 P.2d 1050, 1055-56 (Colo.1982). In Banner Advertising, Inc. v. People of City of Boulder, 868 P.2d 1077, 1081-83 (Colo.1994), we relied in part on the implied preemption doctrine to invalidate a local government's ban on commercial banner towing by aircraft, because a Federal Aviation Administration ("FAA") regulation allowed pilots who had obtained an FAA certificate to tow banners.

We have applied preemption analysis in cases involving alleged conflicts between state statutes and local government land use authority. Because home rule land use authority has a basis in the Colorado Constitution, we utilize a four-part test when examining the validity of a local ordinance or regulation enacted by a home rule city or county, in the face of an alleged state conflict: "whether there is a need for statewide uniformity of regulation; whether the municipal regulation has an extraterritorial impact; whether the subject matter is one traditionally governed by state or local government; and whether the Colorado Constitution specifically commits the particular matter to state or local regulation." Voss v. Lundvall Bros., Inc., 830 P.2d 1061, 1067 (Colo.1992); see also City of Northglenn v. Ibarra, 62 P.3d 151, 155-56 (Colo.2003).

In contrast, statutory counties only enjoy "those powers that are expressly granted to them by the Colorado Constitution or by the General Assembly," which include "implied powers reasonably necessary to the proper exercise of those powers that are expressly delegated." County Comm'rs v. Bainbridge, 929 P.2d 691, 699 (Colo.1996). Accordingly, in cases involving statutory counties, we have applied the ordinary rules of statutory construction to determine whether a state statute and a local ordinance can be construed harmoniously or whether the state statute preempts the local ordinance. Id. at...