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HomeMy WebLinkAboutPC Hearing Staff Report 08.04.820 0 PROJECT INFORMATION AND STAFF COMMENTS PROJECT NAME: Colorado Lien Company OWNER: Bureau of Land Management LOCATION: Approximately 10 miles northeast of Rifle, west of the Rifle Fish Hatchery off State Highway 325. SITE DATA: The affected area is a 40 acre tract of land owned by BLM. The actual mine site and processing area would encompass approximately 26 acres. PROPOSED ROADS: The applicant would haul by way of a access road onto State Highway 325, then to State Highway 13, and then proceed to the respective destinations either by way of State Highway 13 north, or possibly through Rifle to I-70. ADJACENT ZONING: North: A/R/RD South: O/S East: A/R/RD West: A/R/RD DESCRIPTION OF THE PROPOSAL: The applicant proposes to develop an open pit mine to extract high calcium limestone and to crush and stockpile this product on a 26 acre parcel of BLM land. As mentioned above, the product would be transported by State Highway 325 from the site. The year-round employee count is expected to be eight miners. Five to six of these employees would be seasonal; employees, living in temporary quarters. The remaining employees would be permanent, and they are expected to live either in Rifle of Glenwood Springs. Colorado Lien's transport operations would be conducted 52 weeks per year, five ;days per week at an average of 384 tons per day. This would require approximately 16 round trips per day or 32 vehicle trips per day. Colorado Lien has proposed certain provisions and guidelines by which they would transport their product. The applicant has indicated that the hauling will take place as follows: 1. The applicant will coordinate with the Rifle school boards to ensure that truck traffic will not oppose school bus traffic; 2. Truck length will be limited to 38 feet; 3. All safety requirements required by the State Department of Transportation will be implemented, including: a. Log books on drivers; b. Regular physical inspection of all vehicles; C. Limitation of driving hours to reduce accidents caused by fatigue. 4. Tacogra�hs will'be installed in all vehicles to monitor vehicle speed and engine r.p.m. to provide additional checks on vehicle safety and speed on highway; 5. Semi-annual reports will be made to Garfield County, including: a. Number of citations issued to individual drivers, if any; b. Number of motor vehicle accidents involving Colorado Lien drivers, if any; c. Number of deer killed, if any; d. Number of loads hauled per week; e. Number of workers employed; f. Monthly quarry output; g. Any other relevant information requested by the County. 6. Drivers will be paid on a per hour salary rather than a per load hauled basis in order to reduce incentive for high speed; 7. Truck traffic will be limited to the hours between 7:00 A.M. and 5:00 P.M. during summer months and daylight hours in the winter. No loads will be hauled after 3:00 P.M. Friday, on weekends, or on state or National Holidays. 8. Truck speeds will be restricted to posted speed limits. All trucks will be equipped with Jake brakes; 9. Applicant will install two-way radios in trucks and school buses to facilitate safety; 10. Blasting will be restricted to mid-day and warning signs will be posted giving notice of actual blasting and the hours blasting will occur; 11. Dust control will be implemented on the crushing operation. Chip and seal will be applied to the access road between the quarry and Highway 325. Sedimentary procedures will be used between the quarry and Rifle Creek; 12. Applicant will cooperate with the State Highway Department to place signs warning of ,heavy truck use on Highway 325 and other roads and highways used within Garfield County; 13. Only legal loads will be hauled on Highway 325 and other roads and highways used within Garfield County. The life of the operation is seventy-five years. PREVIOUS HISTORY OF THIS REQUEST This application was first reviewed by the Garfield County Planning Commission in August of 1980. The Planning Commission recommended approval with conditions (see copy of August 1980 minutes, pages 15,16. On September 22, 1980, the Garfield County Board of Commissioners held a public hearing on this request. This hearing was continued until October 6, 1980, at which time the Board accepted further testimony. The hearing was then closed, and a decision was scheduled for October 20, 1980. On that date, the Garfield County Commissioners denied the application"by Colorado Lien Company, due to the inadequacy of the road systems providing access for the mine site, and due to the impact of this use and the resultant traffic on the recreational facilities in the area. Subsequent to this decision by the Board, Colorado Lien filed suit against the county. However, when it was discovered that Colorado Lien had applied for the wrong type of permit, (Special Use vs. Conditional Use), the lawsuit was withdrawn. The county, in the meantime, had amended the zoning regulations to allow for a determination of certain uses on public lands to be either special or conditional uses, depending on the issue of Federal or State preemptive regulations in regard to the specific proposals. On April 5, 1982, the County Commissioners hedrd legal arguments from the County Attorney and counsel for Colorado Lien in regard to the question of federal preemption and whether this proposal constitutes a special use or a conditional use. On that date, the County Commissioners made the decision that the Colorado Lien proposal was a special use, and the project was referred to the Planning Commission. Since that time, the applicant and the county have jointly employed a traffic consultant to review the access route proposed by the applicant. Mr. Matt Delich, the consultant, will present his findings to the Planning Commission at the August 11, 1982 meeting. A copy of his study is also enclosed. STAFF COMMENTS: 1. Colorado Lien proposes to use State High4way 325 as its immediate access to the mining area. The road presently cannot safely accommodate the type of heavy traffic proposed by the applicant. This road is recognized by the Colorado State Highway Department as being narrow and having numerous curves. The Department also acknowledges that the road and structural base is not sufficient to carry the types of heavy traffic projected for the mining operations. Improvements to this road are not included in the Department's present five-year construction plan. 2. Colorado Lien proposes to limit its haul truck size to 38 feet in length. These trucks would carry an average load of 76,000 pounds. Due to the existing winding conditions of State Highway 325, and the narrow width of the road base, this type of heavy industrial traffic would have a major impact on the safety of the recreational and residential users of the highway. 3. In the traffic study it was noted that State Highway 325 had capacity to handle the increased volume of traffic as generated by Colorado Lien. The consultant also discussed safety improvements and vehicle specifications that need to be addressed before State Highway 325 experiences increased taffic volumes. However, one issue needs to be further stressed; that is, the structural (road base) capacity of State Highway 325. As indicated, the State Highway Department is of the opinion that the increased heavy haulage precipitated by Colorado Lien's proposal Page 5 will cause further deterioration to the road base. It is the responsibility of the Highway Department to maintain the roads as needed. Yet the State has indicated that they do not have additional monies budgeted for improvements to the road; and they have asked the county to "bear with them" in the time required for needed road maintenance. Because of the condition of State Highway 325, regardless of the many improve- ments suggested by the traffic consultant, the actual structural condition of the road base is of utmost importance. Lack of swift and adequate maintenance of any road base deterioration decreases the safety of the road, and therefore, raises concerns regarding the types of traffic which would likely precipitate this deterioration. 4. The environmental report supplement for the Union Shale Oil Upgrading plant and truck loading facility noted that "Highway 13 from Rifle to the county line is already over capacity and additional truck traffic will add to present over capacity.<< Although not part of the existing 5 -year Capital Improvement Program of the Colorado Department of Highways, the reconstruction of Highway 13 and addition of hill climbing lanes to the road were suggested by the Colorado West Area Council of Governments as a means of improving the road for projected traffic increases by the year 2000. 5' Recent traffic counts are showing an increase in usage of State Highway 325 over previous years. The 1980 annual average daily county for State Highway 325 just north of its intersection with State Highway 13, showed 1050 vehicles per day. The previous year indicated 900 vehicles per day. Increasing area populations will further stimulate an increase in this traffic. 6. Tourism and recreation play major roles in the economy of Garfield County. In the area of the mine site and along the applicant's proposed access route, there is considerable public investment in numerous tourist and recreational facilities. Those public facilities could experience substanti.�al adverse impacts as a result of mining -nerations in such close proximity. The Rifle Falls State Park and Rifle -Gap Reservoir Area had a visitor count of 148,026 in 1981. The Rifle Gap State Park had a visitor count of 166,,103 from July 1979 to June 1980. The City of Rifle Mountain Park, north of the mine site, also has substantial usage. The Division of Wildlife has operated the Rifle Falls Fish Hatchery since 1954. The Hatchery had an estimated count of over 30,000 visitors in 1981. The operators indicated that slightly less than half of these visitors are from out of state. To the best knowledge of the Wildlife Division, the Rifle Hatchery has the largest trout production of any state or federal hatchery in the United States. It represents a multi-million dollar operation that contributes to both the state and local economies. The value of catchable and fingerling trout produced at the hatchery approaches one half million dollars annually, generating a significant number of dollars for the recreation industry. 7. The character of the land uses adjoining State Highway 325 can be characterized by two distinct patterns. The land uses surrounding State Highiaay 325 from the Rifle Gap Reservoir to the Rifle Falls Fish Hatchery is generally recreational in nature, with a few residential units interspersed. The character of the southerly portion of State Highway 325 has, in fact, been changing in recent years. Several residential developments have been approved (Rifle Creek Estates) or are now in the review process (Rifle Creek Ranch, Cedar Hills PUD) in this area. 8. The Garfield County Comprehensive Plan encourages industrial expansion where similar development already exists in appropriate areas. The Plan also encourages industrial development in areas where adequate transportation facilities are available. Further, the Comprehensive Plan allows for the county to deny a project based on inadequate road access which would lead to further deterioration of the road and/or large daily traffic volumes. The Compmehensive Plan addresses at length, the issue of compatibility of proposed and existing uses. Specifically, it speaks to a proposal's "adverse impacts on the desirability of the surrounding community," "alteration of the basic character of adjacent land uses" and "impairment of the stability or value of adjacent or surrounding properties." REVIEW AGENCY COMMENTS: 1. State Highway Department indicated that the June 27 and July 30 comments still apply: The road can handle increased traffic volume, but that State Highway 325 is not structurally capable of handling the heavier truck traffic; and some deterioration is to be expected (see pages 17 & 18 ). PaFe 6 2, City of RIfle - the City recommends denial of this request until the access limitations are corrected; see August 11, 1980 memorandum and resolution and April 2, 1982 memorandum, pages 19gQ F 91 3. RE -2 School District indicated that the September 12, 1980 comments still appy: Concerns in regard to the safety of the school children and residents, page 22 4. Bureau of Land Management- letter of April 1, 1982 indicated that the proposed limestone is of metallurgical grade and is considered a locatable mineral. (See letter, page 23 ). 5. Division of Wildlife- the Division of Wildlife is adamantly opposed to any activity which would adversely impact the safety, security and overall operation of the Rifle Falls Fish Hatchery or its personnel. The Division's opinion is that the Colorado Lien project may do so; and they therefore, request that an alternate quarry site be selected (see April 21, 1982 letter, pages 24 & 25 ), ADDITIONAL COMMENTS: 6. March 29, 1982 letter and addendum from Allen A. Schaefer -opposed to the project, see letter, page s 26-28 7. Mr. and Mrs. Wayne Jewell -opposed to the project, see letter pages 29 - 32 , 8. May 10, 1982 letter from Reg Thurlow-concerns regarding possible damage to springs and ponds on his property. See letter page 33 9. May 10, 1982 letter from the Economic Development Committees of the Rifle Area Chamber of Commerce- encourages Colorado Lien to consider alternative access routes, and supports the appplicant's proposal to establish an operation in the Rifle area. See letter, page 34 RECOMMENDATION: Denial, due to the incompatibility with the existing recreational and residential uses in the area, the potential impact on the stability and value of the existing surrounding and due to the present inability of the roa system to safely handle the types of traffic proposed by this application. I 2 8' Page 7 EXi:,Lil B the Buresu of Land F'anaae cnt will be afforded an oppertunity to review and corrment on the following types of applications or proposals that may be filed with Garfield County: 1. Subdivision or mobile home parks within one mile of Public lands or that may impact Public Lands. 2. Roads, power lines, pipelines, telephone lines, and similar rights-of-way. 3. Dams, diversions, ditches, and similar water development or conveyance facilities. ' 4. Solid waste disposal sites and sewage treatment sites within one mile of Public Lands or that may impact Public Lands. 5. Sand and gravel permits. 6. Any mineral developments on private lands. -_ �n-,s...-��... _ ._ ._ _ -^ _.... _. l� -.^-. �- Yom.^-•-�. t - .m -r^ .. �,-e.-..�..�._1�_ -�^vr +. -.+r++�. �+^.� '- _ ;'I 1,NNING t7EPARTIAENT GLENWOuD 5,'RINGS, COLORADO E31501 2014 BLAKE AVENUE t August 9, 1982 Matt Delich 31114 Banyan Avenue Loveland, CO 80522 Dear Matt: PHONE 945-8212 This is to confirm that Colorado Lien's public hearing with the Board of County Commissioners is scl,^duled for Monday, August 23, 1982 at 1:30 P.M. This hearing will be held at the Garfield County Commissioner's Annex, across the street from the Courthouse in Glenwood Springs. If you have any questions, please give me a call. Sincerely, ro---Z� Terry L. Bowman Planner TLB:lw AMERICAN INFORMATION RADIO NETWORK INTER- MOUNTAIN NTER- MOUNTAIN NETWORK "COLORADO COUNTRY" MUSIC NEWS SPORTS WEATHER SPECIAL EVENTS t "Colorado Country" Radio 81 BOX 13109 RIFLE, November 4, 1982 Jim Drinkhouse County Commissioner Garfield County Colorado Dear Jim, 81650 PH. 303.35-3399 Just a quick note to voice my opposition to a limestone quarry near the Rifle Fish Hatchery. Not because I am opposed to the idea of industry in this area, but because of the danger involved on the road to and from the proposed quarry. As a frequent traveler through the Rifle Gap State Recreation Area, and the Rifle Mountain Park, I am acquainted with the narrowness of the road that connects the two. I have no desire to be driving my camper around one of the blind curves on that road and meet a fully loaded, 18 wheel truck. I have a young son that needs me as he grows up. I am fully convinced that it would be of serious danger to residents who travel the road much more than I do for the Commisioners or the courts to allow that quarry to be put in without substantial improvement to the only road connecting the quarry and highway 13. jarry, inc rely, housetat' n Planager OIL SHALE BROADCASTING COMPANY - C.N. PRICE - PRESIDENT & GENERAL MANAGER P.O. Box 640 0 GARFIELD COUNTY COUNTY ATTORNEY'S OFFICE Glenwood Springs, Colorado 81602-0640 TO: Dennis Stranger, Planning Director FROM: Earl G. Rhodes, County Attorney DATE: August 4, 1982 SUBJECT: Legal Opinion in Regards to the Application of the Colorado Lien Company I. INTRODUCTION Phone 945-9158 You have asked my opinion in regards to the status of the application of the Colorado Lien Company, and specifically, whether said application is for a conditional or special use permit.. You need to be advised that on April 5, 1982, a public hearing was held in front of the Garfield County Board of County Commissioners. At the conclusion of that hearing the Board ruled that the application was a special use permit. The effect of that ruling was to make a referral to the Garfield County Planning Commission of the matter, in accordance with Section 9.03.04 of the Garfield County Zoning Resolution of 1978. The Board's decision was based in part upon a memorandum of law which I prepared for the Board dated March 23, 1982. A copy of this memo in whole is attached hereto. By way of conclusion, it is my position that pre-emption is applicable under the facts of pursuant to Section 3.09.01 of the Garfield Colorado Lien application can be treated as permit. This is what the Board decided in i II. HISTORY OF THE CASE neither state or federal the Colorado Lien application, and County Zoning Resolution, the an application for a special use is April 5, 1982 meeting. The above application is the second application permit. The first one was filed in the fall of of County Commissioners denied the application u applicant was applying for a special use permit. since at the time of application the appropriate conditional use permit, which under our zoning r have had the authority to deny. The discovery o litigation between the applicant and the county, basic defect in the jurisdiction of the Board. by Colorado Lien for a land use 1980. At that time the Board pon the assumption that the This was a factual error, permit would have been a egulation the Board would not f this error terminated since there appeared to be a In 1981 the applicable part of the zoning resolution, (Section 3.09.01) was amended so that in the open space zone district an activity could either be special or conditional, based upon the question of the extent of county land use authority. This zoning resolution acknowledges the existence of the doctrine of federal pre-emption of county land use authority, and simply states that to the extent that the county recognizes that doctrine, the county may condition the issuance of a land use permit but not deny it. As stated above, the Board of County Commissioners has determined that the federal doctrine is not applicable in the instant case, and therefore, has stated his desire to a certain maximum land use authority over the application. • 0 III. FEDERAL PRE-EMPTION As you are no doubt aware, substantial acreage in Garfield County is owned by the federal government, and as to these lands, private parties have certain vested rights in terms of the location and extraction of commercial mineral deposits. State law and state police power extend over the federal public domain unless pre-empted by the authority of the federal government. Further, there appears to be a conflict between federal regulations and state and local regulations regarding public land state and local regulations must give way (Ventura County vs. Gulf Oil Corporation, 601 F.2d 1080). Certain tests have been used to determine the presence of a pervasive federal regulatory scheme. The rights of the applicant are under the 1872 Mining Act, which is characterized by an absence of federal regulation. In the instant case, the applicant has been unable to show that it operates by means of either a permit from the federal government or contract. The applicant has submitted a mining operations plan to the Bureau of Land Management, but because of the size of the applicant's operation, that plan does not trigger approval from any federal agency. Two other aspects of the federal involvement in this'case indicate that there is no federal pre-emption. One is the BLM's agreement with Garfield County which provides for the BLM's recognition of county land use authority. The second is a statement of policy in the National Envirolulental Policy Act (42 USC 4371) which provides that environmental concerns are to be carried forward by means of state and local governments. In essence, it is my position that federal and county regulations are not in conflict but are concurrent. By this I mean that the object of the regulations are different, and therefore, are not in conflict. IV. STATE PRE-EMPTION The applicant has argued that Garfield County has no authority over its proposed operation since the applicant's mining operations are governed by the Colorado State Mine Land Reclamation Board. This argument is contradictory to the applicant's argument as to federal pre-emption, since the authority of the State Mine Land Reclamation Board is the same source as the authority for the county zoning authority. Analagous to my position as to federal pre-emption, it appears to me that the object of county zoning, particularly in regards to off -side impacts, is different than the purpose of the Mine Land Reclamation Board. The purpose of the state action is to ensure the reclamation of the site upon the ceasing of operations. The purpose of the county zoning resolution is to determine the appropriateness of the use in accordance with the uses of the neighborhood and the impact of the use upon the public health, safety, and welfare. Since the Colorado statute expressly provides that the Mine Land Reclamation Board shall not grant a permit in violation of a county zoning resolution, it appears to be the intent of the legislature to provide for concurrent jurisdiction of two different regulatory bodies. 0 0 V. CONCLUSION On April 5, 1982, the Board of County Commissioners made a referral of the subject application to the Garfield County Planning Commission. At that time it was expressly declared by the Board that said application was a special use permit. The purpose of the Planning Commission review is to consider the criteria set forth in the Garfield County Zoning Resolution which are applicable to this industrial activity, and make a recommendation to the Board as to approval, approval with conditions, or denial. It is not appropriate for the applicant to argue to the Planning Commission the question of whether the use is conditional or special. In any case, it is my opinion that under the present state of law, the County can view the applicant's use as a special use under the Garfield County Zoning Resolution of 1978. EGR/tb Attachments Dictated, but not read. GARFIELD COUNTY COUNTY ATTORNEY'S OFFICE P.O. Box 640 Glenwood Springs, Colorado 81602-0640 Phone 945-9158 MEMORANDUM OF LAW TO: Board of County Commissioners FROM: Earl G. Rhodes, County Attorney DATE: March 23, 1982 SUBJECT: Application of Colorado Lien Company I. INTRODUCTION By letter dated Yebruary 9, 1982; the attorney for the Colorado Lien Company has made application for.a land use permit for its operations in the East Rifle Creek area off of Colorado Highway 325. Attached to this memo and marked exhibit "A" is the legal position of the Colorado Lien Company, which has been forwarded to the County Attorney's office for review. The purpose of this memo is to respond to that statement of legal authority, and to indicate to the Board the general parameters of the Board's authority as to the two issues raised by the attorney for the Colorado Lien Company: 1) Whether there is Federal pre-emption of County land use authority as a result or a mining claim under the 1872 mining act; and 2) whether State regulation of mining activity pre-empts County land use authority... By way of conclusion, it is the position of the County Attorney that neither State nor Federal pre-emption is applicable upon the facts as set forth by the Colorado Lien Company, and therefore, pursuant to §3.09.01 of the Garfield County Zoning Resolution, that the Colorado Lien Company's application can be treated as an application for special use permit. The implication of this conclusion is that the Board has the power to deny this applica- tion if it deems that appropriate. II. HISTORY OF THE CASE On September 22, 1980, this Board held public hearings in regards to the first application of the Colorado Lien Company for a limestone quarrying operation immediately to the west of the State fish hatchery off of State Highway 325 in the East Rifle Creek area. The matter was then continued until October 6, 1980, and the Board announced its decision on October 20, 1980. Subsequent to the announcement of the Board's decision, the applicant, Colorado Lien Company, brought suit in State District Court to challenge the denial of its application. After legal proceedings had gone on for some time, it was determined that an error had been made by both the applicant and the County Staff, Memo to Board March 23, 1982 Page 2 which error was that the permit which was applied for was a conditional use as opposed to a special use. As you are aware, under our zoning system the Board does not have the authority to deny a conditional use, whereas, it does have the authority to deny special use. Based upon the discovery of this error, the lawsuit was dismissed and the Colorado Lien Company has made application for a land use permit. At this time, the applicant is arguing that a conditional land use permit is appropriate here fcr the argument stated in the introductory section above. Subsequent to the discovery of the error mentioned above, §3.09.01 was amended by resolution #81-145 so that in the open space zone district an activity may either be a special or a conditional use based upon the question of the extent. of the County land use authority. Marked as exhibit "B" is the verbatim language of this section. In summary, when the Board determines that it does not have the power to deny a land use application because the Federal government has pre-empted the County's land use authority, the application is treated as a conditional use application. Where the Board determines that there has been no pre-emption, such activities are treated as special eases. The purpose of this memo is to outline for the Board what the Doctrine of Federal Pre-emption is and how the specifics of this case relate -to that legal theory. III. STATE PRE-EMPTION OF COUNTY LAND USE AUTHORITY Before reaching the question of Federal pre-emption, it is appropriate to consider the issue raised by the applicant of whether the County's land use authority has been pre-empted by the State of Colorado, as a result of the activities of the Mine Land Reclamation Board. As the Board may be aware, this issue is presently in the Courts, as a result of the decision of the Boulder District Court Judge in the C&M Gravel case (80CV1359-2) in which case, on December 18, 1981, Judge Richard Dana ruled that the County has no land use authority as to the location of a gravel pit. By way of conclusion, the County Attorney's research indicates that Judge Dana's opinion is incorrect, as well as the stated position of the applicant, Colorado Lien Company, since both by tradition, and by legal interpretation, there is no conflict between the County's land use authority and the authority of the State Mine Land Reclamation Board. Prior to discussing what authority the State has delegated to the Mine Land Reclamation Board, it is good to remember that the County's land use authority also comes from the State. Memo to Board March 23, 1982 Page 3 Although the manifestation of that authority is regulations. enacted by the County, the authority to enact these regulations was promulgated by the State Legislature in §30-28-101 et seq. C.R.S. 1973, as amended. Thus, the County's land use authority does not spring from any inherent power in the County, but as a delegation of the responsibility from the State of Colorado. The sound reason for this is the determination that the Counties, which exists for the convenient administration of State government, are in a better position to make land use decisions than the State government itself. Thus, it is incorrect to characterize local regulations as being supported only by local authority since these regulations have been expressly authorized by the State of Colorado. On pages four through six of.the applicant's legal position paper, the applicant argues that there is comprehensive State legislation of the mining field, and therefore, no room for the County to exercise its State given land use authority. A.reading of the statute indicates no such legislative intent, and in fact, exactly the opposite: express recognition of the County's land use authority. To begin with, the applicant's reliance upon the Preservation of Commercial Mineral Deposits Act, §34-1-301 et seq. .(applicant's legal position paper, page 5).is misplaced for two reasons: 1) That act is not applicable to Garfield County, since its population is less than 65,000 [see §34-1-302 (3) ], and 2) The act defines at. §34-1-302(1) a commercial mineral deposit to include "a natural mineral deposit of limestone used for construction purposes." In the last hearing in regards to this application, the applicant indicated that the purpose of its limestone was for a chemical to be used in scrubbing devices at the Craig power plant. This could not reasonably be included in the definition of "for construction purposes." Thus, the applicant's reliance upon the Commercial Mineral Deposits Act is misplaced, and to the extent that the Judge in the C&M Gravel case also relied heavily upon this act, the applicant's reliance upon that case is not well founded. The applicant is correct in that its activities would be governed by the Colorado Mine Land Reclamation Act at §34-32-101 et seq., C.R.S. 1973, as amended. However, the applicant stretches beyond reasonable understanding of the intent of that act-, when it interprets that act to exclude local land use authority. It is clear from reading the act that its intent is to cover the operation of mining activity, and specifically, the reclamation of land consumed by that activity. The language of the statute does not give the Mine Land Reclamation Board any authority over off-site impacts or the relationship of the mining activity to other uses in the neighborhood of the proposed mining site. This is made clear by the definition of mining operation in §34-32-103(8), Memo to Board March 23, 1982 Page 4 where "transportation, and other off-site operations not conducted on affected land" are expressly not included within this definition. Both the name of the act and the name of the Board contain the word reclamation, and the general intent of the statute is to govern reclamation activities on-site. At page five of its legal position paper the applicant states "Garfield County does not have authority to demand a special use permit of this applicant because of C.R.S. 1973 §34-32-105'(6)." The applicant then quotes accurately from this section, but then fails to point out to the Board the next sentence of :he section which is crucial to the Board's authority in this area. The next sentence reads: "However, the Board (Mine Land Reclamation Board) shall not grant a permit in violation of city, town, county, or city and county zoning or subdivision regulations or contrary to any master plan for extraction adopted pursuant to §34-1-304, unless a prior declaration of intent to change or waive the prohibition is obtained by the applicant from the affected government subdivisions." Reading this section as a whole, it is clear that Garfield County could not issue a permit for mining activities in contravention of State law, but it is equally clear that no State permit for mining activities will be issued without the approval of the affected government subdivision. By failing to point this out to the Board, the applicant has badly misconstrued the intention of the statute. No doubt this Board and the applicant are both aware that as a matter of practice, the Mine Land Reclamation Board will not issue its permit in contravention of County land use authority. Marked as exhibit "C" and attached hereto is a letter dated October 2, 1980, from Monte Pascoe,. Executive Director of the State of Colorado Department of Natural Resources. In summary, this letter gives an administrative interpretation of the statute, which has the same effect as the literal language of the statute itself. This is that the County does not have the authority to issue permits for mining or for reclamation, but the State Board will not issue its permit in violation of County zoning authority. From the above, it is clear that there is no comprehensive State regulation of mining with the intent of excluding LJ Memo to Board March 23, 1982 Page 5 • County land use authority. Rather, the State system contains regulation of specific areas deemed to be of State interest. Both because of the existence of State statutory authority for local land use control, and ex-olicit references in the statute that mining permits will not be issued in violation of County zoning, it simply cannot be said there is State pre -emotion of mining activities from local control. IV. FEDERAL PRE-EMPTION As the Board is aware, Garfield County contains 719,747 acres of property, the surface of which is owned by the United States Government, and additional acreage in which the minerals are reserved to the United States Government. As to these lands, there is concurrent jurisdiction of both County land use regulation and Federal proprietary management systems. It is an established principle of law that State law and State police power extend over the Federal public domain within its boundaries until pre-empted, and only to the extent pre-empted by Federal law. Texas Oil and Gas Corp. vs..Phillips Petroleum Company, (Western District Okla. 1967) 277 F. Suon. 366 Aff'd (10th Cir. 1969), 406 F.2d 1303; State of Idaho Ex Rel. Andrus vs. Click, 554 P.2d 969 (Idaho, 1976). In.a:recent Colorado Case the principle has been established that tr.e Federal government must be responsive to local land use concerns. See City and Countv of Denver vs. Bergland, 517 F. Supp. 155 (1981). It is well established in the law that where conflicts arise between Federal regulations and State and local regulations regarding public land, the latter are pre-empted. Kleppe vs. New Mexico, 426 U.S. 529, 96 S. Ct. 2285, 49 L. Ed. 2d 34 (1976); Ventura Company vs. Gulf Oil Corporation, 601 F.2d 1080 (9th Cir. 1979), Aff'd 445 U.S. 947, 100 S. Ct. 1593, 63 L. Ed. 2d 782 (1980). However, it is not self-evident that there is any inherent conflict between County land use authority and a Federal mining claim based upon the 1872 mining law, as is asserted by the applicant. "It is often a perplexing question whether congress has precluded State action, or by the choice of selective regulatory measures has left the police power of the State undisturbed, except as the State and Federal regulations collide. Rice vs. Sante Fe Elevator Corporation, 331 U.S. 218, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947)." However, four tests have been developed to determine pre-emption: 1) The intent of congress, as revealed by the statute in its legislative history. • Memo to Board March 23, 1982 Page 6 0 2) The pervasiveness.of the Federal regulatory scheme. 3) The nature of the subject matter regulated, and whether it demands exclusive Federal regulation. 4) Whether, under the circumstances of a particular case, State law stands as an obstacle to the accomplishment of the purpose established by congress. It should be noted that in applying these tests, the pre-emption should not be found unless "the act of congress, fairly interpreted, is in actual conflict with the law of the.State." Huron Portland Cement Company vs. City of Detroit,.Michigan, 362 U.S. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960). Applying the first test above, it is clear that the intent of the 1872 Mining Act was to provide for the development of the mineral resources of the country. However, there is no express declaration that State regulation is to pre-empted, and in fact, there is express references to local law;. "...all valuable mineral deposits and lands belonging to the United States ... shall be free and open to. exploration and purchase... under regulations prescribed -by law, and according -o the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States." 30 U.S.C. Sec. 22, Several cases have recognized that "nothing in the (Mining Law of 1872) or its legislative history (indicates) an attempt to pre-empt State regulation. Indeed the Federal statute specifically recognizes the State's right to impose additional requirements in some areas." Click,Supra;.see also O'Donnel vs. Glen, 8 Montana 248, 19 P. 302, 306 (1888); see also Butte City Water Company vs. Baker_, 196 U.S. 119, 123-124, 49 L. Ed. 409, 411 (1905). Applying the second test, the Mining Law of 1872 is to be noted by its absence of regulation as opposed to a pervasive regulatory scheme. This is very important, since this allows the instant case to be distinguished from the Ventura case which is based upon the Mineral Lands Leasing Act of 1920, which is a much more comprehensive legislative scheme. In this regard, the language of the Garfield County Zoning Resolution, §3.09.01 is significant since it is the duty of the Board to determine whether the applicant operates by means of a permit or contract with the Federal government. In the instant case, the applicant merely has a claim, the use of which • Memo to Board March 23, 192 Page 7 does not require compliance with any Federally imposed conditions. This is the essence of the distinction between this matter and the drilling operation in the Ventura case. Marked as exhibits "D" and "E" and attached hereto are memorandum of understanding between Garfield County and the Bureau of Land Management, United States Department.of Interior. These agree- ments govern cooperation between the two entities in regards to land use matters on public lands. In exhibit "E", II, section h. the memorandum of understanding states: "To the maximum extent possible (the parties) agree that no lease, grant, or other conveyance of public. land shall exempt such lessee, grantee,.or other conveyee from compliance with County land use plans, laws, or regulations which are or may be in effect as of the date of the lease, grant, or other conveyance." In that the Bureau of Land Management is a responsible Federal entity for the property of interest to the applicant, this section is significant for giving the administrative interpretation as to local land use authority. Simply put, the above section indicates that the Bureau of Land Management will recognize the County authority unless its actions pie-empt the field. In the instant case, were a mining claim is involved, the Bureau of Land Management has issued no permits or contracts and has imposed no conditions on the operation of the applicant. Thus, according to section h. above, the Bureau of Land Management would respect the County's land use authority over the subject matter. The third test above is that of national uniformity of the Federal legislation. In regards to this, it cannot be denied the State and local governments are vitally interested in the management of their natural resources. Indeed, congress is recognized in the National Environmental Policy Act of 1969, (NEPA), that the primary responsibility for implementing an environmental policy rests with State and local governments, 42 U.S.C. §4371 (b)(2); see also 42 U.S.C. §4331 (a). Also the Federal Land Policy Management Act of 1976 as recognized the rule of local governments in Federal decision-making. See 43 U.S.C. §1765. Thus, given the references in the 1872 mining law to local custom and the more recent Federal legislation, it cannot be said the national uniformity is presently an imperative objective of the mining laws. Memo to Board March 23, 1982 Page 8 The fourth test stated above is whether under the circumstances of a particular case, the application of State law is an obstacle to the accomplishment of the purposes set forth by' Congress. It is to be admitted that the 1872 mining law was prompted mainly by hopes of economic development. Click, Supra, 976. However more recent legislation has tempered this one- sided policy. At 42 U.S.C. 4371, the National Environmental Policy Act declares: "(b)(1) There is a national policy for the . environment which provides for the enhancement of environmental quality. This policy is evidenced by statutes heretofore enacted relating to the prevention, abatement, and control of environmental pollution, water and land resources, transportation, and economic and regional development. (2) The primary responsibility for implementing this policy rests with the State and local governments." Given the above, Garfield County zoning regulations are consistent with, and not contrary to, the objectives and purposes of Congress. Further, the requirement for a County land use permit does not preclude mineral development, although it .may make it more difficult. Therefore, since the regulatory scheme is not an absolute bar to development, it cannot be said that its application to the instant case is such as to thwart the purposes of Congress. The above analysis strongly suggests that there is no Federal pre-emption in regards to claims filed on Federal property under the 1872 mining law. This conclusion is strongly buttressed by the applicant's failure to recognize that it willingly submits itself to the jurisdiction of the Mining Land Reclamation Board, and yet argues the local zoning authority, which is also derived from the State, is precluded by Federal pre-emption. From the point of view of Federal pre-emption, the authority of the Mine Land Reclamation Board stands in no better position than the County's land use authority. It seems obvious that the purposes of the Mine Land Reclamation Board, as well as local zoning, are compatible with the Federal legislation, since each is directed toward a different purpose, and that the applicant must comply with all laws, Federal, State and local, in order to undertake its operation. EGR/tb EXHIBIT A 41 LEGAL POSITION OF COLORADO LIEN COMPANY Garfield County Does Not Have The Authority Under Its Zoning Ordinance To Deny Colorado Lien Its Right To Mine Limestone On Federal Mining Claims. I. Introduction. Sec. 3.09 of the Garfield County Zoning Ordinance provides that unless included within another zone district all land owned by the United States Government shall be within the Open/Space district. Sec. 3.09.01 provides for the following uses with-in-the-open/Space district: Uses, special or conditional: Extraction, pro- cessing, fabrication, and storage of natural resources and agricultural materials; water impoundments; sanitary landfills; aircraft landing strips; and utility facilities; recreational support facilities. The above uses shall be governed by a special use permit which shall be approved by the County Commissioners as provided for in this Zoning Resolution; except that where the authority for said use arises from a specific contract or permit with the U.S. Government for the use of property owned by that government, then that use shall be a conditional use, upon which the County Commissioners may impose conditions necessary to protect the health, safety .and welfare of the people of Garfield County, provided that said conditions do not directly conflict with.the federally imposed regulatory scheme. The procedure for obtaining such conditional use permit shall be that prescribed for any use otherwise authorized by conditional use permit. The above form of Sec. 3.09.01 was adopted by the Board of County Commissioners by Resolution on August 24, 1981. This section is an effort by Garfield County to utilize the zoning power to regulate to the fullest legal extent the enumerated uses on federal lands. It establishes a permit program whereby'a use is a special use if in the mind of the Commissioners they have the authority �to altogether deny the use but only a conditional use if the Commissioners may only condition the use -to protect -the public health, safety and welfare. It is a clear recognition that by virtue of con- flicting statutory schemes Garfield County may have the authority to re ulatel2 use but not to ultimately determine if the use can occur. - II. Garfield County Is Precluded From Applying Its Special Use Provisions To The Instant Application Because Of The Relationship Between The Federal Government And The Applicant. The real property which is the subject of this appli- cation is' owned by the United -States Bureau of Land Management. The applicant, Colorado Lien Company, is the owner of the substance to be mined and has the legal right to enter the property by virtue of valid mining claims filed pursuant to the general mining laws of the United States, 30 USC 21, et seg. These statutes establish the federal government's intent to solely determine the existence of mining activities on federal land and thus preclude Garfield County from denying the applicant a permit to conduct its proposed mining activity. Thergeneral mining laws of the United States, 30 USC 21, et seg., establish a scheme whereby public lands containing valuable minerals are subject to location and entry by the l/ Sec. 3.09.01 of the Zoning Ordinance states on its face that -uses on federal government property are conditional where the authority for such use arises from a specific contract or permit with the U. S. Government. We submit that while this language recognizes to some degree the limitations placed upon local governmental authority by conflicting federal and state laws, it is not an accurate enunciation of the full extent of the limitations imposed by the doctrine of preemption and is therefore unlawful. Similarly, we note other legal deficiencies in the language of Sec. 3.09.01 but do not advance them here, reserving, however, our right to raise them in a more appropriate forint. -2- permit than was presented in Brubaker v. Board of County Commissioners of El Paso County, Ng .81SA186, now pending before the Colorado Supre-me.Court. . In this case there is no question about the legitimacy of the applicant's claim to valuable mineral lands. Applicant has the exclusive right of possession and enjoyment of its claims, 30 USC 26, and it is obligated to perform work upon the claim or forfeit.it, 30 USC 28. See also 43 CFR 3850. For Garfield County to prohibit the applicant from mining by denying a special use permit is to not only unlawfully interfere with a preemptive federal statutory scheme but also to deprive the applicant of valid property rights without compensation. For the foregoing reasons, it is clear that Garfield County does not have the authority to deny applicant the right to mine limestone on its federal mining claims. Under the current languFge of Sec. 3.09.01 of the Garfield County Zoning Ordinance, therefore, applicant's proposed use is a conditional use which can only be reasonably regulated by the Commissioners. III. Garfield County Cannot Demand A Special Use Permit Of Ap_plica- nE-Because The Area -Of Mining -Regulation Has Been Preempted By State Law And The Permit Requirement Is Prohibited By C.R.S. 1973 34-32-109(6). Sec. 3.09.01 of the Garfield County Zc;ning Ordinance, while recognizing the doctrine of preemption as applied to federal law, does not acknowledge that local government regulations can also be preempted by a state statutory scheme. Bennion v. Denver, 180 Colo. 213, 504 P.2d 350_ (1972); Givigliano v. Veltri, 180 Colo. 10, 50.1 P,2d 1044 (1972). Thus, where the state has provided a comprehensive scheme to regulate the field, a county does not have authority to promulgate regulations which in any way contradict the state legislation. In Colorado, mining is such a field. Applicant agrees with the appellant in Brubaker that even in the circumstances there presented the District Court of El Paso County was incorrect in affirming the County Commissioners' denial.of the special use permit. - -4- The mined Land Reclamation Act (MLRA), C.R.S. 1973 34- 32-101, et seq., and the Preservation of Commercial Mineral Deposits Act, C.R.S. 1973 34-1-301, et sem., present a comprehensive, pervasive legislative scheme to regulate mining in Colorado, from the discovery of the mineral to the reclamation of the land after completion of extraction. Both statutes proclaim that the regulation of mining is of state-wide concern. The statutes together establish a state-wide program for all stages of mining and the issuance of permits therefor. The MLRA creates the Mined Land Reclamation Board (MLRB) to which every mine operator must make application for a permit, 34-32-109, and which is the only arm of the state which has the authority.to issue a permit for mining, 34-32-109(b). The MLRA thus creates a single state agency which is charged with permitting all mining throughout the state. Such state-wide regulation over an -area declared.to be of state-wide concern is classic preemptive legislation. In the face of such state legislation, Garfield County is without the power to impose contradictory regulations. Yet, this is exactly what Garfield County has attempted to do by demanding special use permits of mining operations. The County is attempting to .superimpose another permit system upon a state-wide system which specifically provides that no state entity except the MLRB has authority to demand a permit. Again, Garfield County has attempted to give itself a power of determination where only a power of reasonable regulation exists. Garfield County does not have. the power to demand a special use permit of this applicant .because the area of permitting mines has been preempted by state statute. See, C & M Sand & Gravel Co. V. Board of County Commissioners of the Countv of Boulder, 80CV1359-2, December 18, 1981. More specifically, Garfield County .does not have the authority to demand a special use permit of this applicant because of C.R.S. 1973 34-32-109(6). That section provides: "No governmental office of the state, other than the Board, nor any political subdivision of the state shall have authority to issue a permit.or to require any performance or financial warranty of any kind for mining operations." By requiring a special use permit of mining operators, -5- 0 0 Garfield County has attempted to assume the ultimate mining authority granted to the MLRB by this statute.' In other words, Garfield County has attempted to place itself in a position of greater authority than the 1LRB - a position where Garfield County, not the Board, determines whether mining occurs. This usurpation of authority by the County is patently offensive to the state statute. See, C & M Gravel Co., supra. Garfield County may have the power to reasonably regulate the health, safety and welfare aspects of a proposed mining operation but it cannot retain the discretion_ to altogether deny a permit which a state statute specifically grants to an independent state agency. In the context of Sec. 3.09.01 of the Garfield County Zoning Ordinance, then, this applicant's proposed use must_ be a conditional use. Garfield County does not have the authority to demand a permit of this applicant which in the discretion of the County may be denied,.because a state statute specifically prohibits it and the entire field of regulation of mining activity has been preempted by the state legislative scheme. IV. Conclusion. This applicant's proposed use is a conditional use which can only be reasonably regulated by Garfield County. The use cannot be a special use because the.Garfield County Zoning Ordinance grants the County the discretion to altogether deny a special use, Garfield County does not have the authority to deny this applicant's proposed use hN/virtue of conflicting and preemptive federal and state law.— In this document we have shown how the applicant's proposed use is a conditional use within the terms and conditions of Sec. 3.09.01 of the Garfield County Zoning Ordinance. lie believe there are other constitutional and statutory reasons why Garfield County is -constrained from altogether denying applicant its permit. Failure to discuss those reasons in a document of such limited scope as this does not constitute a waiver of any such issues which might be raised in a more appropriate forum, 0. The conditions heretofore imposed by the Garfield County Planning Commission and incorporated in the instant application will protect the health, safety and welfare of the -citizens of.Garfield. County. The application for conditional use should therefore be granted. Respectfully submitted, DELANEY & BALCOIIB, P.C. B/ �� A Lawrence R. G en', P. O. Drawer 790 Glenwood Springs, CO 81J 2 (303) 945-6546 Attorneys for Colorado Lien Co. MFt EXHIBIT "B" 3.09.01 Uses, special or conditional: Extraction, processing,,fabrication, and storage of natural resources and agricultural materials; water impoundments; sanitary landfills; aircraft landing strips; and utility facilities. Tha above uses shall be governed by a special use permit which shall be approved by the County Commissioners as provided for in this Zoning Resolution; except that where the authority for said use arises from a specific contract or permit with the U.S. Government for the use of property owned by that government, then that use shall be a condi- tional use, upon which the County Commissioners may impose conditions necessary to protect the health, safety and welfare of the people of Garfield County, provided that said conditions do not directly conflict with a federally imposed regulatory scheme. The procedure for obtaining such conditional use permit shall be that prescribed for any use otherwise authorized by a conditional use permit. t r L V- r_ t�'_ r.. _ •r, t,.:t;J ^. (:9vcin^.r eoo,,1 a La,d 1-s -r 1 l i1` Y r :1 '7 a j r -ti -'S �'t Di,.r�f7n C}. v!.;r-,fiSlra liC;1 f 3' D vrsio nt r,Grie3 Monte• Pascoe..— � . Erecu;t�7 Direc;0: _ f �i Diwisioh of Parks & Out_wr Recreation 1313 Sherman St., Room 713, Denver, Colorado 80203.839.3311V j ` Division of Water Rcanurces ! N Divisign.of Wildlife .W— Geological Survey Oil and Gas Conservation Commission Soil Conservation Board `� , / 17+ attLConservation Board YYY I Alined LandRctallon — October 2, 19801•; ..... ✓ •_.... (1; :� -: eamj Vp Garfard ield CoL'"i of County Ccnissiorers - ty Post Office Box 640 Glenwood Sprin-s, CO 81601 RE: Policy of Departs-nt of Natural Resources and :Mined L�3zd Reclanatien Board regarding County zoning resolutions C.aentlenvan : This office has been requested to provide the position of the Colorado Depart=t of Natural Resources and the .Colorado Mined: Laid Rechation Board re gardi--:g the ability of camty cave rments to exercise the zcning tD power recob ized at C.R.S. 1973, 34-32-109(6), in light of the a"parent prchLbit_Lon or, local permdttLng contained in. the sate section. It is the policy and interpretation of the Departure-nt of NafiT•al Resc7Lrces and the Mined Land Reclamiat on Board that any county ray --.xercise its zoning power through special use permti.ts , conditional -use pe mts . or uses by right or by exception, provided that the zoni-ig procedure (1) does not require the posting of surety for reclamation, (2) does not address the recla-=-tion perform,ce standards set forth in 34-32-116(a) through (r), and (3) does not purport to authorize udning operations zrifrout the issuance of the appropriate pew dt from the Board. Unless a county zoning process violates one of the above conditions, the Department and the Board consider ccnT)liance with the county zoning process prerequisite to issuance of any a nino pe=tet. The basis of this opinion is found in 34-32-109(6) and (8) and 34-32-115 (4) and (4)(e). All of the cited sections provide in one way or antler that mining and recl,--rarion pernats may not be granted by the Board if the application is '!...inconsistent with..." or ".,.in violation of ..." county zoning or subdivision regulations. Yyou sante Pascoe n{ecutive Director ;3i:;SC?2T':7v;i OF tiJDRTI,lDI3v i<EviI :ia OF SUt'.UIVISIOA I'ILIAG PL.=QTS iL:D '_'RGPGS D STp.UCTI0J OF POP.DS '�CRDSS IATIU•+ISL ._:SOURCE LAIiDS ::e twean Garfield County, Colorado I�ctiag by and ti:roug" its i�ard of County Cor. issioners -aid The Bureau of Land Manage:xnt United States Department of t:ie Interior The Parties to this i.leinorandum of Understanding, made t]iis 14th day of —January , 1973, between Garfield County, acting by and through its Board of County Com;ilissioners, heroinafter referred to as tie County, aid the bureau of Land `ianagement, U.S. D,�L.artment of t;;e Interior, hereinafter referred to as the Bureau, witness that: l•HERE.�S, Garfield County contains 719,747 acres of :.ational Resource Lands of tZe United States and additional 'areas ism which minerals were reserved to tiie United States, bott-i of w:7ich are administered and managed by tie Bureau; and WH3 .-'R2 AS, changing land use resulting from the subdivision of privately o.med lands for rural residential homesites or cabin sites and construction and maintenance of roads across :rational R.asource Lands affects in varyirig degrees said lands and minerals ad:zinistered and managed by the Bureau; and 17??Lrc '1S, suc 1 development and construction has a direct effect on the economic and social Nell being of the county; and r" I under t' �' i'r3tlU1'lal L ,IVironmc,—ital i)011� y t Of 1`�J� � if r Title 42 U.S. Co:3s S�etion 4332, the Du--eau])asa continuing re<.'Donsibility to maintain, enhance and restors t:.a c,sality• of the environment; and under tale County's planning and zoning authority and the requirements of Colorado Senate :gill 35, u`ie Counthas a y continuing and increasing responsibility for proper land use throughout t3 -'e County; and i'•F IEREAS, development of rural residential horesites or caiiin sites is usually dependent, among other dings, on the construc- tion of access roads, sone of wiv ch cross "jat'-oral resource Lairds under jurisdiction of t!1e ZTureau; and the res,i�onsibilities of the County and Bureau are dependent upon such roads :being adequately clesl ned, constructed, and maintained; and nable �ti,=EAS, the County and Bureau recognize the right Sf reaso access to and devVloPmnt of private lands; ,collo•.,7ing is understood and agreed to by the :.ow Therefore, tiie parties hereto: That with respect to proposed si`,divisicn filings: The County -rill: 1. afar or000sed subdivision filings, together with ttihe engineering design and supporting 2 F f r-. r . t �Stcri.11 ri:r_uired unser Colorado S-tnate Bill 35 to the Bureau of Land *-:an._- e±r,-,nt for evaluation of environmental impact and reconn-1--ndations as soon as practicable . after receipt it the County for initial review. 2. Give due consideration to the District Manager's recor.u--ndations when approval of uie subdivision filings are. being considered. 3. Invite the District Manager to -participate in any negotiations with potential sub- dividers when the proposed subdivision is believed to have a significant impact. .he Lureau, through its District iianager in the area of the pro- posed su!)division, will: 1. Upon receipt of subdivision filings referred by the County, initiate prompt review. a. i4here no significant impact is identified i on National ]Resource Lands or on mineral I `V rights or other rights reserved to the = United States on non -Federal land, the _1 i - County will be so advised :within one week or less, 14:1ere si(nificant a0v_-rse impact on !rational resource Lands or mineral rights or other rights reserved to the United states on non - Federal land is identified, the -.Coi-r,ty will be so advised within one week, with an indication of tie probable nature of t. -,e impact and tie Bureau's ;>est estimate of the tires that will be required to fully evaluate t:e impact. The Bureau ,will analyze the environ -mental impact to the degree appropriate to the particular situation, and will reco-=iand to the County, 1) Special conditions and stipulations needed to mitigate adverse impact on natural resources; 2) Modification of alignment of roads on other facilities; 3) ,hat an Environmental Impact Statement is needed; 4) That the proposal be denied. With respect to authorization of road construction across i:ational Resource Lands, ahetier in connection with proposed subdivision devalopc:iants or other,,Ase, The Sure au will: 4 ,� tt f 1. Pn,,uire filing of a spoe�ial land use � Perrot application ,by land developer or others; 2. P.afer copy of application, together s with supporting engineering data, to the County for review; 3. Give due consideration to the County's recon.�iendations concerning approval ,of the permit and any special stipulations • or conditions required. The County will: = �s 1. Determine compatibility of road construction proposed ;vith State and County transportation plan; 2. tdhether engineering design will assure construction to County standards; 3. �r e neti� r road at completion of - construction can and will be - accented into County road system -- for p-erpetual maintenance; 4. Regardless of �a..ether raadwa whether will .gill - be accepted into County's transportation - F ~- . - - - - .-� , �- _-may. �.�., n--. _ _ +-+r.-- =YTT>"�T��--� '� _-�-----T�,T __• Y _r. _-- .- - _ �-_ � systonr recDn .. - d to s,)ecial cGndit:1 GnS C',•-�G: i2:i ne casSarY ' for the pernitl S. Will determ, ine when the road ha's en constructed to County standards. , Annual Review .At least once a year, representatives of both agencies will review this agrLemnnt for op=rating efficiency. :codification This agreer,-hent will become effective when signed by the designated representatives of both ag,311cies. This agreement. shall remain in effect until modified by the parties in writing and is renegotiable' at the option of aider party. - .A. P'RJV—ED: f.(hq_^---- State Director, Colorado bureau of Land t-Ianager,�ent / Late Garfield County, By and Through, its Board, of County Commissionars �z . Chairman-• - January 14, 1974 Date 6 C:. ;. „,....rrs of Garfie;d Co' ,'y, Cnlorad0 and 1,-teUir('ctor, Gln'c'U of L::nd ..':n ^,_,=nt U. S. D:,ar -ent of the in`c:rior of Undrrsta^Jin;, ,.:adc and entered into by , d between cf C(,u,ty Co;n�nissioners of Garfield County, Colorado, -2nd the ar, C,;reau of Land f.anagcment, Colorado, acting pursu2nt to 1 Land Policy and .11ana.,nrent Act of 1470, Rational Envira-amental ;•.' of 1?C9, Titic IV of the Intcr-,,ivcrr.:-ental Cooperation I,ct of L;)Cal Sovernment Laid Use Enabling Act of 1974, as co:,ifled C.R.S. 19733; �29-1-201 et seo., C.R.S. 1973; and 330-11-102 (1) 15i3; ,:nd all ame^d=tory acts thereof or, supple. Lntal thereto, „ a:!,er iegislation and regulations as may apply, WITNESSETH, that: Garfield County (hereinafter referred to as the County) has a C(,unty ;-taster Plan, zoning, and other land use control regulations develop er.. of all lands in the County, and W.itr2E.,S. Bureau of Land Manage:=ent (hereinafter referred to as BLED has ; .:naco:nent framexorh plans to guide management and develorment of ; :;'.)1 i c 1 encs, and Ladd use or development decisions by either party may become censtrain.s on similar decisions by the other party, and WiiEREAS, Goth the Ccuntv and BLt•1 desire to coordinate their respective pl,:rning and decision processes in oreer to achieve maximum benefits from av--ilabie resources, to reduce duplication of effort and to attain better overall coordination of land ma;age,ent throughout Garfield County, t;M4, THEREFORE, it is agreed that: I. Each party will: , A. Cooperate in land use decision-making, including consultation in land use decisions and in preparation of land use plans, including, for example, County master plans and BLH manage- ment frz.—,ework plans,.including any amendr„ent to or revision of said plans. B. Inform each other as far in advance as possible of anticipated plans and proposed activities that mig`.;t affect either party, but in no c -,se shall such infor-atian be provided less (i y n►u, 1 � t r } ,_ i 2 I isn Cf s: ific ;o this i�arcr--.r_nt, includ',ng, but not liriit,d to, agree: -:eats rcyDarding zon;ng, subdivision of lands, road construction, ... in cn nue and use, and rights-of-way, • i 1 ? 1. Tf:c• Curcau of Land i;anagement will : A. Solicit County participation in developing plans, programs, and proposals for mana5eent of public lards and ccnsider those views in the decision process. Participation will specifically include analysis of preliminary recoF2endations (Step 1, 1•iFP) and conflicts, development of recoT-7:endations (Step 2, 11FP) for adoption of the managec,ent fr.am:ework plan, and all rights to receive notice of and to participate in such planning as are provided by §202(F) of the Federal Land and Policy Management Act of 1976 and regulations adopted pursuant thereto. B. Provide the County an opportunity to (1) revier,v and cc7.merit on applications sub,,itted to BLM that would affect land use or development in Garfield County, and (2) to participate in development of the requisite environ; -cental assess -rents (environmental statements and envirommental analysis reports). Participation will specifically include analysis of land use irpacts and analysis of alternatives. Those types of applications the County will review include, but are not limited to, those on Exhibit A, attached hereto. C. Make available to the County all non-proprietary resource and land use infor;,a"ion concerning land located in Garfield County in possession of BLIM and all data frcm public land ,inventories m.aintained under ;201(a), (b) of the Federal Land Policy 1•12n3ge.ment Act of 1976 and all regulations adopted pursuant thereto. 2 I or c . ,ir c : '.c, c c l i nce tr;_h Cc-unty ;:nd use pl;:n<_, laws, or re;uiat e„S which arc or F -ay be in effe:t as of Vie date of the lease, gr:nt, or other, conveyance. At least sixty (60) days prior to offering for sale or other,aise conveying public lands within the Ccunty, notify the Board of County Co.--missioners of such sale or conveyance in order to afford them an opportunity to zone or othenvise regulate, or chance or amend existing zoning or other regulations concerning the use of lands . prior to such conveyance. The BLM shall also promptly notify the Board of County Co. issioners of the patent or other document of conveyance for such lands: ,.^J: Cooperate with the County in the enforce..ent of the County re-gulations specified at SII.C. of this 1-lesorandum of Understanding. S K: In the development and revision of BLM land use plans, provide for cc.,plia,ce with all state pollution laws and county regulations pronulc3ted thereunder ;pursuant to state law re;ardino air, water, noise, or other pollution standards or impler„entation plans. Cooperate with the County in mitigating the socio-economic impacts of lard use activities on federal lands and with regard to federal mineral rights. III. Garfield County will: A. Solicit ELM participation in developing master plans and zoning, or revisions thereto, for lands in Garfield County. Participation will include review ar-d co=ent on planning and Zoning proposals and may include non-voting ex -officio membership or. the Ccunty Planning Cc,-_iission. B. Provide Kri an epPortuni ty to review and cc.. er,t on jS �— Za ttz C ::nt,y I .,�iUJ:,iy ti.c 71 i.iliif.�] Cor:;iission) that involve land use or zoning that may 4 J ' �• sic t, ..-i _�� .. -�t iI lii� �-�. �. '. l' ti .. :i ,i ��'-\ , C. "::fie ovaileb! e to BLM social and cconoTis infcrr.ation in `ossession of the County. D. !',.ke County expertise or personnel available for com- plc•mcntary data -gathering, environmental studies, and land use planning as is deter-ined by the County to be practical, recognizing financial and pers3nnel co.straints. E. Unless agreed to the contrary, the County shall not rezone any land described in §!I.I. a5ove, after the notification and before the sale therein described. IV. Tineliness: Both parties recognize that time is of the essence in per- formance under this agreement; in some cases -it may be critical. Where necessary, reasonable tine limits may be set for par- ticipation by either party. N. Yothing in this agreement will be construed as limiting or affecting in any way the authority or legal responsibility of the Board of County Ccmrnissicners or the State Director, or as binding either County or the Bureau of Land HanaceTant to perform beyond the respective authority of each, or as re- quiring either party to assume or expend any sum in excess of appropriations available. VI• Amendments or supplements to this agreement may be proposed by either party and shall beccme effective upon written approval of both parties. VII. This agreement shall beco„e effective as soon as signed by the parties hereto and shall continue in force unless form -ally terminated by either party after thirty (30) days' notice in writing to the other of the intention to do so. m 4t, 5 C 0 ' �'1(!.• E.;:'i c•,.•: 4'rov :;n � ,iS i', .. ,.;',:a of l:+•.i�rst:.n'ir•y • t to the I a..;s of *'he SLate of Cnlorado' Garfield County, and the lows of the United States, and the regulations of t'le Secretary of the Interior. IN Wll,"[SS Th;;,ior, the parties hereto have caused this document to be executed, the Board of County CG:--,iiiissicners of Garfield County, Color'ado, and the State Director, Bureau of Land j­,anaqe.-,,2nt, Colorado, on this day of 1978. SLate ir—Loi, e e 4, Gate Bureau of Land !'�nagement 7 Bureau of Lend j'-'anaqei--_-E-nt The Board'of County Cc.T,,missioners of Garfield County, Colorado C h a late 'Commissiny late C of):.j i S ner Date Approved: SLate ir—Loi, e e 4, Gate Bureau of Land !'�nagement ' ... �T � — ' xn c;-/,--t-,riry to rcvi�� and cn the opplico1ions or �''i�rols that may be filed :i1h Sorcoo of Lend ��nt, "clvu'in3, tut not linited to the fol lowing types of act iviti es� � . l, n�,hts'of'vxy for roads, poocr lines, pipelines, tcleFtone ' lines, and rights-of-way projects' y. Land use Plen"ixg info,notinn (resource in,cntpri:s, mznac- mcnt. pians, etc). ]. [nvirun:-,ental aos»ment* and stutc-ents' 4' Withdrawals and revocations. , 6. Sole` rxc��:Se' lease or other c3nveyance of lands. O' Oil, gas and mineral expinrotiun, develop:-,ent and ` production. ' . . ^ . , . . ' _t' � afforded an opportunity to review �1teUrcau of Lend t--,dn.,Qc .. cnt will be - r and co = ent on the folici-ing types Of applications or proposal i S that befiled with Gar`eld County: 1. Subdivision or W3ilc ,,O -e par-I.s within one mile' of Public -D lands or t11 -.3t r, -,ay I;-,p3C, Public Lands. Z. p.op.ds, po"er lines, pipelines, telephone lines, and similar rights -of -:pay. 3. Dams, diversions, ditches, and similar water development or conveyance facilities. 4. Solid waste disposal sites and se,,,;age treatment sites within one mile of Public Lands or that may impact Public Lands. 5. Sand and gravel permits. 6. Any mineral developments on private lands. J�.