March 22, 2007
On March 22, 2007, the Colorado Court of Appeals upheld a county use of its land use powers to ban cyanide mining in Colorado Mining Assocation v. Board of County Commissioners of Summit County, (provide link to decision from Court of Appeals website). Berg Hill partners Josh Marks and Heidi Potter have been representing Summit County in the case since 2004 and argued the case before the Court of Appeals. The Court of Appeals reversed a trial court ruling that the State Mined Land Reclamation Act foreclosed the County from enacting the ban. The Court of Appeals determined that the MLRA did not preempt the County from using its local land use powers to ban certain mining processes, because the County was not regulating mining reclamation, which the State regulates through the Division of Minerals and Geology. The Court construed the County's ban on one specific type of mining as an appropriate exercise of its land use powers. Moreover, the Court of Appeals also found that the County's ban did not impede or frustrate the goals or operation of the MLRA.
The decision provides an important guidepost for local government regulation of mining activities in Colorado. This decision preserves Summit County's ability to regulate chemical mining operations that employ cyanide to further its interest in protecting against the contamination of water and land resources and in preserving its ability to regulate environmental dangers. The County's cyanide mining ban is similar to other bans enacted by other county governments, who have also created such legislation in response to contamination that occurred at the Summitville Mine in Southern Colorado. In 2004, the. County adopted amendments to its land use and development code, including the ban against cyanide mining. The proposed amendments were the subject of multiple hearings before the County-wide Planning Commission and the Board of County Commissioners. In enacting the ban, the County obtained input from citizens, the Colorado Division of Minerals and Geology, and the Colorado Mining Association. Following the enactment of these amendments, the Colorado Mining Association and the State of Colorado challenged this legislation.
This decision is one a series of favorable land use rulings that Mr. Marks has obtained for Colorado local governments over the last five years.
