COLORADO MINER’S ASSOCIATION V. BOARD OF COUNTY COMMISSIONER OF

SUMMIT COUNTY: RESTRICTING THE ABILITY OF STATUTORY COUNTIES TO

REGULATE MINERAL DEVELOPMENT

ANDREW LINDSTAD

I. INTRODUCTION

In Colorado Miner’s Association v. Board of County Commissioner of Summit

County, the Supreme Court of Colorado answered the question whether Colorado’s

Mined Land Reclamation Act (MLRA) preempts an ordinance Summit County adopted,

invoking land use authority that prohibited use of toxins and chemicals in vat or heap

leach operations. The court answered this question in the affirmative, reasoning the

Colorado General Assembly gave the mined Land Reclamation Board the discretion to

authorize the use of toxic and chemical mining techniques and, as such, Summit

County’s ordinance would displace the Board’s authority. This casenote will provide an

overview of the cases discussed in Colorado Miner’s Association, a brief explanation of

the vat and heap leach operation, examination of the applicable case law, and analysis

of the current state of the doctrine of preemption in local efforts to protect environmental

health.

II. FACTS AND PROCEDURE

In 2004, Summit County banned the use of chemicals for mineral processing in

vat or heap leach operations throughout the county.1 This ordinance was passed as part

of its general land use and development codes, which county governments have

1Colorado Miner’s Association v. Board of County Commissioner of Summit County, 199 P.3d 719, 721 (Colo. 2009).

traditionally had the authority to do.2 The Colorado Mining Association challenged the

ordinance in state district court claiming the Mined Land Reclamation Act preempted the

ordinance. The district court ruled in the Colorado Mining Association’s favor, holding

that the ordinance is expressly preempted by MLRA.3 Summit County, along with

interveners Alliance for Responsible Mining and the Blue River Group of the Sierra

Club, appealed the district court ruling claiming the ordinance was a legitimate exercise

of the county’s land use authority.4 The court of appeals reversed the district court

decision stating the ordinance was not expressly or impliedly preempted by the MLRA.5

The Supreme Court of Colorado reversed claiming the state’s interest was sufficiently

dominant in mineral processing using toxic chemicals that local government regulation

in this particular area was implicitly implied.6 In its conclusion, the court stated, “Summit

County’s ban on the use of cyanide or other toxic/acidic ore-processing reagents in

heap or vat leach applications exceeds its statutory authority in a field the General

Assembly identified and granted the Board authority to permit and regulate, i.e., the use

of toxic or acidic chemicals or reagents in mining operations for mineral processing.”7

2Id. at 722. The statute reads, in pertinent part, “[a]ny 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.” Id. (quoting Summit County, Colo., Development Code Ch. 3, Sec. 3812.04 (2004).3Id. at 722. 4Id.5Id. 6Id. at 726.7Id. at 731.

III. BACKGROUND

A. PREEMPTION

The purpose of the preemption doctrine is to establish a priority of law enacted

by different levels of government.8 There are three types of preemption: federal

preemption, home-rule preemption, and statutory preemption.9

The Supremacy Clause of the U.S. Constitution establishes federal law as the

supreme law of the land.10 Federal law preempts state law in six ways. First, when

Congress expressly preempts state law. Second, when there is conflict between state

and federal law. Third, when compliance with both laws is physically impossible. Fourth,

when there is an implicit barrier in federal law to state regulation. Fifth, when federal law

is so comprehensive it is said to occupy the field. Finally, when state law is an obstacle

to execution of the objectives of Congress.11

In state preemption for statutory governments, the analysis is divided into three

categories: express, implied, and operational.12 Express preemption occurs when “the

express language of the statute may indicate state preemption of all local authority over

the subject matter.” Implied preemption occurs when the state statute “evinces a

legislative intent to completely occupy a given field....” Operational preemption occurs

when its effect “would conflict with the application of the state statute.”13

8Board of County Commissioners v. Bowen/Edwards Associations, Inc., 830 P.2d 1045, 1055 (Colo. 1992).9Id. at 737 (Martinez, J., dissenting). 10U.S. CONST. art. IV. 11State Department of Health v. The Mill, 887 P.2d 993, 1004 (Colo. 1994). 12Debra S. Kalish, et. al., The Doctrine of Preemption and Regulating Oil and Gs Development, 38 Oct. Colo. Law. 47 (2009).13Dep’t of Transp. v. City of Idaho Springs, 192 P.3d 490, 495 (Colo. 2008).

In state preemption for home-rule governments, there are three categories of

concern for the courts: matters of local concern, state concern, and mixed state and

local concern.14 There is a four part test to determine into which of these categories a

particular topic will fall. First, whether there is need for statewide uniformity. Second,

whether the municipal regulation has extraterritorial effects. Third, whether the subject

matter is traditionally governed by state or local law. Finally, whether the Colorado

Constitution commits the subject matter to state or local regulation.15

Two themes are consistent in preemption analysis for both home rule and

statutory counties in Colorado oil and gas regulation. First, the state has a significant

interest in mineral development and human health and environmental protection.

Second, local regulation cannot negate a more narrowly tailored state law.16

B. BOWEN/EDWARDS

In Bowen/Edwards, an oil and gas company sued La Plata County, a statutory

county, arguing the Colorado Oil and Gas Conservation Act preempted the county’s

land use authority. The court found that the state’s interest in oil and gas development is

not so dominant as to preempt local regulation, therefore no implied preemption was

found nor are they irreconcilable so long as state law does not explicitly or implicitly

preempt local law.17 Therefore, local governments theoretically could exercise land use

authority regulating oil and gas development following the Bowen/Edwards decision.

14City of Northglenn v. Ibarra, 62 P.3d 151, 155 (Colo. 2003).15Colorado Mining Association v. Board of County Commissioners of Summit County, 199 P.3d 719 (Colo. 2009).16Id. at 730.17Board of County Commissioners v. Bowen/Edwards Assocs., 830 P.2d 1045, 1055 (Colo. 1992).

C. VOSS

In Voss, the city of Greeley attempted to ban oil and gas development within the

municipality. The court ruled that the state’s interest in the development of oil and gas

preempted the municipal regulation because Greeley is a home rule city and the

development of oil and gas the statewide interest is strong enough to prohibit a home

rule city from completely banning oil and gas development.18 Therefore, local

governments theoretically could exercise land use authority regulating oil and gas

development, but only if it did not constitute a total ban on such development.

D. HEAP AND VAT LEACHING

In describing heap and vat leaching, the Supreme Court of Colorado stated:

“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. There are environmental and public

health concerns with the use of cyanide in mining as it is a dangerous compound. Public

concerns are understandably warranted or justified that there needs to be new land-use

regulations that would ban gold mines that use cyanide, stronger enforcement or raise

the burden of proof that the mining industry will not pollute the environment and put the

public at risk. heap leach mining can have impacts to the environment, particularly water

quality, if not closely monitored or regulated. The largest risk of cyanide heap leach

mining is if cyanide seeps into the subsurface and water tables.”19

E. MINED LAND RECLAMATION ACT

18Id. 19Id. at 722 n.3.

The Colorado Mined Land Reclamation Act was passed by the General

Assembly to strike a balance between the extraction of minerals and the reclamation of

land affected by such extraction.20 The General Assembly acknowledged that both

activities should be and are compatible.21 The General Assembly also 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” as well as “conserve natural resources, to aid in the protection of wildlife and

aquatic resources.”22 Further, the General Assembly further sought to require the

development of a mined land reclamation regulatory program.23 In doing so, the General

Assembly created the mined land reclamation board.24

The Mined Land Reclamation Act was amended in 1993 to require the Mined

Land Reclamation Board to accept Environmental Protection Plans for all Designated

Mining Operations to protect human health, property, and water.25 The Act also vested

authority in the Board to authorize and regulate the use of toxic and acidic chemicals in

mining operations.26 The Mined Land Reclamation Act also vested the Minded Land

Reclamation Act Board with the authority to promulgate rules related to minded land

reclamation.27

20 C.R.S. § 34-32-101(1).21 Id. 22 Id. 23 C.R.S. § 34-32-101(2).24 Id. 25Id. at 722 n.2.26Id. at 723.27C.R.S. 34-32-106 (2008).

These amendments were enacted in response to the Summitville gold mine

disaster. The Summitville gold mine is located in the San Juan Mountains of

southwestern Colorado. In 1992 and 1993, considerable study was done of the

environmental impacts of mining operations at the Summitville mine after several years

of heap leaching mining activities. Mineral rich and cyanide drainage was found at

several sources throughout the mine site, which flowed into the Alamosa River. The

Alamosa River provided habitat for wildlife, and irrigation for many crops in the San Luis

Valley. In 1990, fish completely disappeared from stock reservoirs. The mining company

filed for bankruptcy and the U.S. Environmental Protection Agency took over the site

and declared it a Superfund site. The cleanup cost between $100 and $120 million.28 It

is clear that Summit County was looking to avoid the same fate when it enacted its bad

on vat and heap leach mining.

IV. ANALYSIS

The Supreme Court of Colorado began its analysis by examining Colorado’s

MLRA. In doing so, the court paid particular attention to how the General Assembly

vested authority in the Mined Land Reclamation Board (the Board) to regulate the use

of chemicals in mining operations.29 In striking down Summit County’s regulation, the

court based ruled the MLRA vested complete authority to regulate reclamation

procedures in the Board.30 However, the court did acknowledge that the county did

retain its land use authority over location and impacts of mining operations.31

28U.S. Geological Survey, Open File Report 95-23 (2005).29Id. at 723.30Id. at 730.31Id.

The court distinguished preemption analysis when state law conflicts with local

law for home rule land use authority and statutory land use authority. For home rule city

or county regulations, the court uses the four-part test in determining the validity of the

governmental action. First, the court asks “whether there is a need for statewide

uniformity of regulation.” Second, “whether the municipal regulation has an

extraterritorial impact.” Third, “whether the subject matter is one traditionally governed

by state or local government.” Finally, “whether the Colorado Constitution specifically

commits the particular matter to state or local regulation.”32

By contrast, statutory governmental entities, such as Summit County, enjoy only

the power granted to it by the Colorado Constitution and the General Assembly,

including those implied for the necessity of exercising those powers.33 Any statutory

county ordinance that conflicts with state law is void.34 In addition, the Local

Government Land Use Control Enabling Act states “where other procedural or

substantive requirements for the planning for or regulation of the use of land are

provided by law, such requirements shall control.”35 State and local ordinances must be

either impliedly and expressly inconsistent or irreconcilable for a finding of preemption.36

The Local Government Land Use Control Enable Act specifically allows counties to

exercise land use authority over development and activities in hazardous areas,

protecting its land from immediate and foreseeable damage to wildlife habitat and for

the orderly use of land and protection of the environment.37

32Voss v. Lundvall Bros., Inc. 830 P.2d 1061 (Colo. 1992).33County Commissioners v. Bainbridge, 929 P.2d 691 (Colo. 1996).34C.R.S. 30-15-411 (2008).35C.R.S. 29-20-107 (2008).36Ray v. City and County of Denver, 121 P.2d 886 (Colo. 1942).37C.R.S. 29-20-104(1) (2008).

The court based its conclusion that the MLRA implicitly preempted the Summit

County regulation on three principles. First, the ordinance impeded the MLRA’s goal of

encouraging mineral development while protecting human health and the environment.

Second, the ordinance is inconsistent with both the General Assembly’s decision to

authorize the use of chemicals in mineral production. Third, statutory construction

requires the court to favor the MLRA over the county’s ordinance.38

The majority concluded that because the MLRA defines designated mining

operations and grants the Board the sole authority to regulate such operations, the

MLRA preempts local land use regulations.39 The court found implied preemption

because, according to the majority, the MLRA sought to occupy the field in this

particular area of the law.

The court concluded that the county’s land use authority did not extend to a total

ban on disfavored uses for all zoning districts. The decision, however, does leave open

the question of whether the county could ban specific mining practices as long as the

ban was not total and it was narrowly tailored to a specific mineral development plan.

The fact is that the MLRA does allow for concurrent exercise of land use authority.40 The

MLRA in fact directs the Board to consider local permits, licenses, and approvals in

considering approve mining permits. If the General Assembly intended the MLRA to

occupy the field in this area, it would not have directed the Board to consider local land

38Id. at 731.39Id. at 739 (Martinez, J., dissenting).40Id. at 740. “The board or the office shall not deny a permit if the operator demonstrates … [n]o part of the proposed mining operation, the reclamation program, or the proposed future use is or may be contrary t the laws or regulates of this state or the United States, including but not limited to all federal, state, and local permits, licenses, and approvals, as applicable to the specific operation.” C.R.S. 34-32-115(4)(c)(I).

use regulations in making decisions for mining permits.41 This expansive view of state

preemption of local land use authority severely limits the ability of counties and

municipalities to develop county-wide regulations for the protection of human and

environmental health. Given the fact that heap and vat leach mining is particularly

dangerous to water supplies, this ruling effectively eliminates Colorado counties ability

to protect water supplies for human environmental health.

V. Conclusion

Given the reasoning of the Summit County decision, it is difficult to envision a

scenario where the court would permit a county to develop county-wide land use

regulations in oil and mineral development when the state has vested enabling authority

in a state board. The General Assembly specifically directed the Board to take local land

use decision into account. Yet, the Supreme Court of Colorado has made clear that it

will interpret implied preemption liberally. The county’s remedy is to petition the General

Assembly or seek relief from the voters through the ballot initiative process to restore its

full land use authority for environmental regulation.

41Id. at 740 (Martinez, J., dissenting).