September 2003

Gravel-pit foes win big battle

By Jim Mimiaga

Citing procedural errors and a lack of due process, a Colorado court has ruled that public hearings that led to the approval of a controversial gravel mine in the Dolores River Valley were invalid.

Denver District Judge William D. Robbins ruled Aug. 15 that the Colorado Mined Land and Reclamation board erred in its handling of two hearings regarding the Line Camp mine proposal, one that was held in Dolores and another in Denver.

The Line Camp mine is located six miles upriver from Dolores. It has been operating on a county high-impact permit along with a MLRB permit under a five-year plan that is now being re-examined.

In his ruling, Robbins admonished state mining officials for not recording the pre-hearing conference in Dolores when they should have; for illegally dismissing key issues opponents had a right to formally present; and for unfairly preventing cross-examination of expert witnesses for the mining industry at the final hearing in front of the MLRB board, which, he added, approved the mine “after no deliberation.”

Also, the mine’s permit applicant and operator, Four States Aggregate, submitted a revised application to the Division of Minerals and Geology after the first one was deemed incomplete, but no new notice was published in the newspaper as required by law, according to the ruling.

These infractions violate the laws laid out in the Administrative Procedures Act, Robbins wrote in his decision, and therefore the meetings must by reconducted properly by Minerals and Geology and the MLRB. The state agencies are responsible for issuing and monitoring reclamation permits required for mining minerals.

The whistleblower lawsuit was filed by Marilyn Boynton of the group Save the Dolores, along with gravel-mine neighbors John Akin and Carol Stepe.

They opposed the mine based on health and safety issues, flood dangers and property de-valuation for neighbors.

“I think it’s great, terrific,” remarked Boynton upon hearing the news for the first time when contacted by the Free Press. “It shows those state agencies that they cannot operate in the dark, that the public is watching. The whole process is rigged in favor of mining.”

Rocky history

The contentious issue symbolizes the need to balance land-development rights and gravel needs with protecting riparian environments and quality of life for residents and tourists. During negotiations in 2001, opponents argued that increased dust, truck traffic, visual blight and flood dangers from the project would damage the scenic valley, property values and tourism.

They lobbied hard for the MLRB and county planners to deny the mining permit based on the impact of another large gravel operation in a river corridor where there are already a half-dozen within a few miles.

“They told us the cumulative impacts of so many in one area would not be considered, but that was the larger picture —there are definite limits on what a watershed can safely handle,” said Pat Kantor of Citizens for Accountability and Responsibility, a Dolores-based environmental group.

But proponents pointed out the need for high-grade gravel. The material, found primarily in river beds, is ideal for making the cement used to build homes, public projects and roads.

“If we did not do this here then it would have to be done somewhere else,” said Val Truelson, who leases his Line Camp property to Four States Aggregate for mining.

“What people do not want to think about is what the environmental damage of gravel-mining would be if it was forced to occur more on public lands like the San Juan River.”

Cease and desist?

While lawyers for the MLRB and Four States consider an appeal, the status of the mine is in limbo. Mining operations were clearly ongoing at the site as of Aug. 25. But Robbins did not specifically issue a cease-and-desist order.

However, under the law a permit is not possible without the public hearing process, which Robbins found was not valid.

“The MLRB permit is essentially on hold because the court found it was not properly issued," said Ken Lane, a spokesman for the Colorado Attorney General’s office, which represents the MLRB.

But when asked if the mining should therefore cease, he responded, “I do not know; it was not part of the ruling. We are still interpreting the judge’s decision and are considering an appeal.”

At the county level however, no state permit means no county permit, confirmed Montezuma Commission Chair Kent Lindsay.

“It was contingent on all other permits being in place so, yes, I think they have to stop mining because that was part of the deal,” Lindsay said, adding that the next phase of mining should be on hold until the hearings and state-permitting process were completed.

Truelson said mining was finished for the time being, and that only hauling was taking place at the site.

The plaintiffs’ lawyer, Jim Preston, said if mining were to begin again it would be grounds for an injunction to stop it until the permit is approved. He argued that the case cannot be appealed because it was not a final order.

The original lawsuit requested that the mine’s approval be overturned due to health and safety dangers.

“But the judge said he is not even going to try to decide that yet because the constitutional rights of objectors were violated during the hearing process,” Preston said.

Calls to Four States Aggregate’s owner, Aryol Brumley, were not returned. His attorney, Kelly McCabe, would say only that progress has been made with the suit and that a settlement was near.

Precedent-setting

If it survives appeal attempts, the decision sets a statewide precedent on how such projects will be decided in the future.

Robbins re-interpreted the Administrative Procedures Act in the decision, significantly changing the procedural status of the pre-hearing conference. He ruled that since major decisions and orders were made by public officials in the case, such as refusing to hear key issues of opponents, then such hearings are “adjudicatory” or judicial in nature. By law, he ruled, they therefore must be recorded.

“What it means is that the pre-hearing conference can now be legally appealed in court because it was ruled adjudicatory,” Boynton said. “(The pre-hearing conference) must be recorded and that’s important to protect your rights as a citizen trying to participate in these government hearings.”

Bruce Humphries, a minerals specialist with the Division of Minerals and Geology, said the agency has been working to adjust the way meetings are conducted because of previous lawsuits, and will do so again because of this one.

In fact, the MLRB is considering a new system that better accommodates public concerns in the hopes of avoiding lawsuits, he explained.

“But it is all pending on what action the MLRB decides to do in this case,” he said.

Humphries did not disagree that the process favors the mining industry.

“Our statutes state that we shall not deny‚ gravel mines that meet the minimal requirements, and this one did, so it was granted a reclamation permit,” he said, adding that most are approved, but a few have been denied over the years.

He emphasized that state statutes for reclamation permits do not deal with land-planning issues. "That is for the county level, and the mine was granted approval there, so it then went to the state process," Humphries said.

Opponents object to that interpretation of the statute and the court has agreed. Such issues must be recognized by the MLRB board and cannot be dismissed at the pre-conference hearing, the judge ruled.

“They tried to throw them out, but now they must be heard and that is important because this project has a lot of dangerous problems regarding flood safety,” Boynton said.

Following several contentious meetings in 2000 and 2001, the mine was granted a high-impact permit unanimously by the county commissioners, who cited private-property rights.

But a mitigation plan addressing public concerns was implemented by the county to reinforce and add to MLRB rules. Hours of operation were restricted, a deceleration lane was installed for truck traffic and a committee was formed to oversee the mining reclamation.

In addition, water-quality monitoring was required, a five-year limit was set on the operation and reclamation ponds were ordered to be rounded so they will be more aesthetically pleasing.

Also, largely because of pressure from Boynton and opponents, the controversy spurred the county to participate in the remapping of the Dolores Valley floodplain to ensure accuracy and address potential safety hazards.

The mapping will be conducted under supervision of the Federal Emergency Management Agency. Last summer, FEMA officials expressed concerns about the number of mines and earth berms in the river corridor and their potential impacts on flooding. It is this information that objectors want to more fully present at the final MLRB hearing.

“I’m looking forward to presenting the facts,” said Boynton, a geologist. “Their (MLRB’s) witness had it wrong.”

The right of citizens to argue against government was reaffirmed, Preston said.

“I think this shows that when a community comes together they can overcome abuses by state and local governments, by going to a court and finding justice there,” Preston said. "This is corporate welfare for the gravel industry, — they get the state’s attorneys and witnesses to do their work for them, and I think the judge saw that abuse of using state resources to fight the grassroots citizenry.”

Boynton, who received a $3,000 grant from the Patagonia corporation to help pay for the fight, is cautiously hopeful.

“I accomplished what I set out to do," she said.

"I spent two years hollering, writing and organizing after I saw how dangerous the situation was. Now there will be some changes in the way these things are handled in Colorado, but I won‚t get my hopes up too much.”

Officials say the new hearings will be within three months, assuming there is no appeal. If the MLRB re-approves the mine, Robbins said, he will make a final determination on its legality.