Colorado Min. v. Board of County Com'Rs, No. 05CA1996.

• Docket Nº: No. 05CA1996.
• Citation: 170 P.3d 749
• Case Date: March 22, 2007
• Court: Court of Appeals of Colorado

170 P.3d 749 COLORADO MINING ASSOCIATION, Plaintiff-Appellee,
v.
BOARD OF COUNTY COMMISSIONERS OF SUMMIT COUNTY, Defendant-Appellant, and
Alliance for Responsible Mining and Blue River Group of the Sierra Club, Intervenors-Defendants-Appellants. No. 05CA1996. Colorado Court of Appeals, Div. IV. March 22, 2007. Rehearing Denied May 10, 2007. Certiorari Granted November 13, 2007.

[170 P.3d 752]

McKenna, Long & Aldridge, LLP, Paul M. Seby, Timothy R. Odil, Denver, Colorado, for Plaintiff-Appellee.

Jeff Huntley, County Attorney, Breckenridge, Colorado; Berg, Hill, Greenleaf & Ruscitti, LLP, Josh A. Marks, Heidi C. Potter, Boulder, Colorado, for Defendant-Appellant.

Jeffrey C. Parsons, Roger Flynn, Lyons, Colorado, for Intervenors-Defendants-Appellants.

John W. Suthers, Attorney General, Cheryl A. Linden, First Assistant Attorney General, Denver, Colorado, for Amici Curiae Colorado Mined Land Reclamation Board and Colorado Division of Minerals and Geology.

Opinion by Judge ROMÁN.

In this declaratory judgment action, defendants, the Board of County Commissioners of Summit County (the County), the Alliance for Responsible Mining, and the Blue River Group of the Sierra Club, appeal the trial court judgment in favor of plaintiff, the Colorado Mining Association (CMA). The court declared certain amendments to the County's land use and development code to be invalid as preempted by the Colorado Mined Land Reclamation Act, § 34-32-101, et seq., C.R.S. 2006 (MLRA). We affirm in part, reverse in part, and remand with directions.

I. Background

Resolution of this appeal depends on the language of the MLRA and the County's amendments and on the procedural posture of CMA's facial challenge to the amendments, which we now review.

A. MLRA

The MLRA was enacted in 1976

to foster and encourage the development of an economically sound and stable mining and minerals industry and to encourage the orderly development of the state's natural resources, while requiring those persons involved in mining operations to reclaim land affected by such operations so that the affected land may be put to a use beneficial to the people of this state.

Section 34-32-102(1), C.R.S.2006. In accordance with this purpose, the MLRA created the Mined Land Reclamation Board to promulgate standards for reclamation plans and established a permitting scheme for mining operations. Sections 34-32-105(1), 34-32-109, 34-32-112, C.R.S.2006.

The MLRA also prohibits any office or political subdivision, other than the Mined Land Reclamation Board, from (1) issuing permits pursuant to the MLRA, (2) requiring reclamation standards that differ from the MLRA, or (3) requiring a performance or financial warranty of any kind for mining operations. Section 34-32-109(6).

Beginning in 1987, a series of failures at a Summitville mine led the Environmental Protection Agency to exercise its authority to enter the site and begin remediation under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601, et seq. Cyanide contaminated water had been discharged into neighboring creeks and ponds, and the mining operator declared bankruptcy before cleanup could begin. The Summitville site was ultimately categorized as one of the nation's most polluted sites. Aztec Minerals

170 P.3d 753

Corp. v. Romer, 940 P.2d 1025 (Colo.App. 1996).

In 1993, the MLRA was amended to create a new class of mine called a designated mining operation (DMO). Section 34-32-112.5, C.R.S.2006. A DMO is a mining operation where (1) toxic or acidic chemicals used in extractive metallurgical processing are present on site or (2) acid or toxic-forming materials will be exposed or disturbed as a result of mining operations. Section 34-32-103(3.5), C.R.S.2006. The amendment also established a more stringent permitting program for DMOs and required that applicants prepare and adopt environmental protection plans. Section 34-32-116.5, C.R.S.2006.

B. Summit County Land Use and Development Code

In 2004, Summit County adopted amendments to its land use and development code. In adopting the amendments, the County intended "to allow mining/milling operations in Summit County provided that adverse impacts of such operations are adequately mitigated." Section 3812. The amendments established permissible zoning districts for mining and milling operations and also prohibited all mining in certain zoning districts. The amendments contained "performance standards" for, inter alia, air quality, noise, transportation facilities, and visual and scenic quality. Section 3812.05. The amendments also stated that the "limited standards of performance or criteria by which to evaluate or regulate mining/milling operations can help mitigate possible adverse on-site and off-site impacts." Section 3812.

C. Procedural History

Without having applied for a permit, CMA filed suit seeking facially to invalidate two specific provisions in the amendments: one provision prohibits cyanide and other toxic or acidic ore-processing reagents in heap or vat leach applications, § 3812.04, and the other describes performance standards for designated chemicals and hazardous materials, § 3812.05(H).

On cross-motions for summary judgment, the court declared that the two amendments were expressly preempted by the MLRA.

II. Standard of Review

We review de novo an order granting summary judgment, applying the same standards that govern the trial court's determination. Svendsen v. Robinson, 94 P.3d 1204 (Colo. App.2004). Summary judgment is appropriate where there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); McIntyre v. Bd. of County Comm'rs, 86 P.3d 402 (Colo.2004).

Here, summary judgment was entered in the context of an action for declaratory relief. Pursuant to § 13-51-106, C.R.S. 2006, and C.R.C.P. 57, a party whose rights are affected by a statute or ordinance may bring a declaratory judgment action to have the court determine "questions of construction, validity, rights, status, or other legal relations thereunder." Jam Action, Inc. v. Colo. State Patrol, 890 P.2d 210, 212 (Colo. App.1994).

III. Preemption

Defendants contend that the trial court erred in concluding that the two amendments were expressly preempted. We agree that the ban on cyanide and other reagents in leach applications is not preempted, but conclude the performance standards for designated chemicals and hazardous materials are preempted.

"The purpose of the preemption doctrine is to establish a priority between potentially conflicting laws enacted by various levels of government." Bd. of County Comm'rs v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1055 (Colo.1992). A county regulation may be invalid if it conflicts with or is preempted by state law. See § 30-15-411, C.R.S.2006; Town of Carbondale v. GSS Props., LLC, 140 P.3d 53 (Colo.App.2005) (cert. granted July 17, 2006, 2006 WL 1976546). Where the regulated matter is of both state and local concern, a local regulation and a state statute may coexist, with both remaining effective and enforceable as long as they do not contain express or implied conditions that irreconcilably conflict

170 P.3d 754

with each other. Bowen/Edwards, supra. If a conflict exists, the local regulation may be preempted. Bd. of County Comm'rs v. Martin, 856 P.2d 62 (Colo.App.1993).

There are three ways that a state statute can preempt a county regulation. First, the express language of the statute may indicate preemption over local authority; second, preemption may be inferred if the statute impliedly evinces a legislative intent completely to occupy a given field; and third, a local law may be partially preempted where its operational effect conflicts with the application of the statute. Bowen/Edwards, supra.

Because CMA instituted a facial challenge to the County regulations and was not denied a permit, we narrow the focus of our inquiry. See Bd. of County Comm'rs v. BDS Int'l, LLC, 159 P.3d 773 (Colo.App. 2006). That is, CMA must demonstrate that the MLRA would preempt any possible condition the County could place on its permit. See Cal. Coastal Comm'n v. Granite Rock Co., 480 U.S. 572, 580, 107 S.Ct. 1419, 1424, 94 L.Ed.2d 577 (1987) (purely facial preemption challenge requires that "there is no possible set of conditions the [local regulator] could place on its permit that would not conflict with" federal (or state) law); Bowen/-Edwards, supra. We turn first to the doctrine of express preemption.

A. Express Preemption

A state statute expressly preempts a local regulation when the express statutory language indicates "preemption of all local authority over the subject matter." Bowen/Edwards, supra, 830 P.2d at 1056; see Martin, supra, 856 P.2d at 65 (express preemption occurs when statute contains "express language indicating legislative intent to preempt totally local regulation").

At the outset, we reject the County's contention that the trial court erred in limiting the scope of its preemption analysis to the area of mined land reclamation and refusing to expand the scope to mining as a whole.

The preemption language contained in the MLRA provides:

No governmental office of the state, other than the board, nor any political subdivision of the state shall have the authority [1] to issue a reclamation permit pursuant to this article, [2] to require reclamation standards different than those established in this article, or [3] to require any performance or financial warranty of any kind for mining operations.

Section 34-32-109(6), C.R.S.2006.

The statute further requires, however, that any mining operator must "comply with city, town, county, or city and county land use regulations," and "[a]ny mining operator subject to this article shall also be subject to zoning and land use authority and regulation by political subdivisions as provided by law." Section 34-32-109(6).

Another division of this court...