Agenda - Planning Commission - 04/02/2009

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I I I Zoning Bulletin February 25, 2009 I Volume 3 I No.4 determined that the use of chemicals for mineral processing posed an ) "unacceptable environmental and public health risk." The Ordinance effectively prohibited in the county a certain type of mining technique customarily used in the mineral industry to extract precious metals, such as gold. The Colorado Mining Association (the "CMA") challenged the Or- dinance. It argued the Ordinance was preempted by Colorado's Mined Land Reclamation Act (the "MLRA"). Under the MLRA, the Colo- rado General Assembly had given the Mined Land Reclamation Board (the "Board") the authority to authorize the use of such mining tech- niques, but only under the terms of an Environmental Protection Plan designed for each operation "sufficient to protect human health, prop- erty, and the environment." On the CMA's challenge, the county court ruled that the MLRA pre- empted the county's Ordinance. On the county's appeal, the court of appeals reversed that judgment. That court held that the MLRA neither expressly nor impliedly pre- empted the Ordinance. The CMA appealed. .DECISION: Reversed. ) The Supreme Court of Colorado held that the Ordinance was not expressly preempted by the MLRA. However, it also held that the Or- dinance was impliedly preempted by the MLRA. In reaching its conclusion, the court explained that state law would preempt local law where, among other circumstances: the General Assembly had expressed clear intent to preempt local law; there was outright' or actual conflict between state and local law; compliance with both state and local law was physically impossible; or state law was so comprehensive as to occupy the entire field of regulation. The court noted that there were three ways in which a state statute could preempt a county ordinance: express preemption; implied preemption; and operational preemption. The court further noted that express and implied preemption were "primarily matters of statutory interpretation." Interpreting the MLRA, the court concluded that the MLRA did not expressly preempt the county Ordinance. In reaching that conclusion, the court noted that the two sections of the MLRA that addressed the relationship between the MLRA and local land use ordinances assumed that the MLRA and ordinances would apply to mining operations in a compatible manner. One of those sections provided that the Board could not deny a reclamation permit to a mining operator if the op- erator demonstrated compliance with federal, state, and local laws. The . court held that the MLRA therefore recognized (and thus did not ex- @ 2009 Thomson Reuters 9 ~' 99