concurring in part and dissenting in part.
I concur in the majority's holding that § 3812.05(H) of the Summit County land use and development code is expressly preempted by the Mining Land Reclamation Act (MLRA). However, I have concluded that § 3812.04 is expressly or impliedly preempted by the MLRA.
At the outset, I recognize that there may be special and legitimate concerns of Summit County, and other mountain counties, in protecting the ground and surface waters from pollution, particularly in light of recent events. In mountainous terrain there is a minimum of overburden that might filter, dilute, treat, contain, or delay spills of dangerous materials, thereby providing some protection to both surface and ground water.
I have, however, concluded that the regulation of the mining industry with respect to its environmental impact has been expressly preempted by the MLRA and related statutes. That preemption, in my view, includes § 3812.04, which provides: "Any mining or milling operation that utilizes eyanide or other toxic/acidie ore-processing reagents in heap or vat leach applications shall not be allowed in any zoning district." This ordinance prohibits gold mining or milling operations which use cyanide to extract gold from *760the ore in which it is found and, perhaps, other mining or milling operations which use similar chemicals in their processes.
In my view, the General Assembly has, by means of its legislative declarations, clearly stated that the development and regulation of the mining industry is a matter of statewide concern which impliedly preempts regulation by cities, towns, and counties. In addition, the broad express preemption provision of the MLRA taken with the defined terms of the act expressly preempts local authority to regulate mining operations.
The development of natural resources has always been a major activity in this state. Among perhaps others, coal, gold, silver, molybdenum, iron, uranium, lead, zine, oil, and gas, have been mined, extracted, milled, or otherwise processed in this state. The regulation of these activities has historically rested with federal and state, not local, governments.
The importance of the natural resources industry, particularly mining, to the state has been emphasized by the General Assembly a number of times in different contexts. While the issue of express preemption may turn ultimately on the statute at issue, the pronouncements of the General Assembly in other contexts, in my view, shed some light on its intent that mining is a matter of statewide concern.
The legislative declaration of the MLRA provides:
(1) It is declared to be the policy of this state that the extraction of minerals and the reclamation of land affected by such extraction are both necessary and proper activities. It is further declared to be the policy of this state that both such activities should be and are compatible. It is the intent of the general assembly by the enactment of this article to foster and encourage the developmeet ef an econemical— ly 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. It is the further intent of the general assembly by the enactment of this article to conserve natural resources, to aid in the protection of wildlife and aquatic resources, to establish agricultural, recreational, residential, and industrial sites, and to protect and promote the health, safety, and general welfare of the people of this state.
(2) The general assembly further declares that it is the intent of this article to require the development of a mined land reclamation regulatory program in which the economic costs of reclamation measures utilized bear a reasonable relationship to the environmental benefits derived from such measures. The mined land reclamation board or the office, when considering the requirements of reclamation measures, shall evaluate the benefits expected to result from the use of such measures. It is also the intent of the general assembly that consideration be given to the economic reasonableness of the action of the mined land reclamation board or the office. In considering economic reasonableness, the - . TS financial condition of an operator shall not be a factor.
(3) The general assembly further finds, determines, and declares that:
(a) It is the policy of this state to recognize that mining operations are conducted by government and private entities;
(b) All people of the state benefit from the reclamation of mined land;
(c) The funding to ensure that reclamation is achieved should be borne equitably by both the public and private sectors;
(d) The funding for enforcement and other activity that is conducted for the benefit of the general public should be supported by the general fund;
poses of this article. (e) It is the policy of this state to allocate resources adequate to accomplish the pur-
. Section 84-82-102, C.R.S.2006.
Similar, if not broader, statements of legislative purpose emphasizing a strong statewide economic interest in the orderly development of natural resources, including mining, appear in other statutes relating to mining and other natural resources. See *761C.R.S.2006 (Geological. Survey Act); § 34-1-801, C.R.98.2006 (Preservation of Commercial Mineral Deposits) § 34-201-01, C.R.S.2006 (Mine Health and Safety Act); § 34-82.5-102, C.R.S.2006 (Colorado Land Reclamation Act for the Extraction of Construction Materials Act); § 34-33-102, C.R.S.2006 (Colorado Surface Coal Mining Reclamation Act); § 34-60-102, C.R.S8.2006 (Oil and Gas Conservation).
With respect to preemption, the MLRA provides at § 34-32-109(6), 2006:
No governmental office of the state, other than the board, nor any political subdivision of the state shall have the authority [1] to issue a reclamation permit pursuant to this article, [2] to require reclamation standards different than those established in this article, or [3] to require any performance or financial warranty of any kind for mining operations. The operator shall be responsible for assuring that the mining operation and the postmining land use comply with city, town, county, or city and county land use regulations and any master plan for extraction adopted pursuant to section 84-1-804{, C.R.S.2006,] unless a prior declaration of intent to change or waive the prohibition is obtained by the applicant from the affected political subdivisions. Any mining operator subject to this article shall also be subject to zoning and land use authority and regulation by political subdivisions as provided bylaw.
(Emphasis added.)
In addition, the Colorado Surface Coal Mining Reclamation Act contains limitations on local government regulation similar to, but not as detailed as, that contained in the first sentence of § 34-82-109(6). Section 84-33-109, C.R.S$.2006. Language almost identical to § 34-32-109(6) also appears in the Colorado Land Reclamation Act for the Extraction of Construction Materials, including the requirement of compliance with local zoning regulations. Section $4-82.5-109, C.R.S. 2006.
The MLRA defines "reclamation" "mining operation" as follows: and
(8) "Mining operation" means the development or extraction of a mineral from its natural occurrences on affected land. The term includes, but is not limited to, open mining and surface operation and the disposal of refuse from underground and in situ mining. The term includes the following operations on affected lands: Transportation; concentrating; milling; evaporation; and other processing....
(13) "Reclamation" means the employment during and after a mining operation of procedures reasonably designed to minimize as much as practicable the disruption from the mining operation and to provide for the establishment of plant cover, stabilization of soil, the protection of water resources, or other measures appropriate to the subsequent beneficial use of such affected lands. Reclamation shall be conducted in accordance with the performance standards of this article. '
Section 34-82-1038, C.R.S.2006 (emphasis added). |
In 1998, the General Assembly added a statutory scheme to the MLRA governing "designated mining operations" which are defined as mining operations at which: "[tloxie or acidic chemicals used in extractive metallurgical processing are present on-site"; or "[aljeid or toxie-forming materials will be exposed or disturbed as a result of mining operations." Section 34-82-108(8.5)(a), C.R.S.2006. The statute authorizes the Mined Land Reclamation Board to promulgate regulations governing designated mining operations and in doing so it is directed to "consider the economic reasonableness, the technical feasibility, and the level or degree of any environmental concerns which may result from" the size of the parcel occupied and the amount of ore removed annually. Section 84-82-112.5(8), C.R.S8.2006. The statute also permits the board to require an inspection and certification of environmental protection facilities constructed at a designated mining operation. Section 84-32-112.5(4), C.R.S.2006. The board has issued regulations as contemplated by the statute which appear to be comprehensive. 2 Code Colo. Regs. 407.1.
There is no dispute that § 8812.04 of the Summit County zoning ordinance prohibits, absolutely, the use of cyanide or other toxic *762or acidic ore-processing reagents in heap or vat leach applications in the county. This prohibition of the use of cyanide, with very limited exceptions, precludes gold mining in the county. Therefore, the ordinance is not a "development standard," a "use by special review," or a "conditional use," any of which would indicate that the county officials have some discretion to permit the use under acceptable cireumstances or conditions. Instead, it is a "need not apply" prohibition.
I.
First, with respect to implied preemption, our Constitution grants to home rule cities a full right of governance in both "local and municipal matters." Colo. Const. art. XX, § 6. Home rule city jurisprudence recognizes matters of statewide, mixed, and local and municipal concern. Within the latter, a home rule city is free to legislate, and its legislation preempts state statutes and regulations. With respect to matters of statewide concern, state statutes and regulations preempt home rule city legislation. In matters of mixed concern, the state statutes and regulations prevail in the event of a conflict. See generally Fraternal Order of Police v. City & County of Denver, 926 P.2d 582 (Colo.1996). Counties, on the other hand, have no constitutional source of power or authority, are creatures of the statute, and derive their powers or authority to legislate and regulate from state statutes. Bd. of County Comm'rs v. Bowen/Edwards Assoc., Inc., 830 P.2d 1045 (Colo.1992); Stermer v. Bd. of Comm'rs, 5 Colo.App. 379, 38 P. 839 (1894).
The implied preemption jurisprudence arising from the Oil and Gas Conservation Act, § 34-60-101, et seq., provides guidance to the present situation. That act, as I have noted, has a broad legislative declaration similar to that of the MLRA but differs in that it has no express preemption section and does not expressly reserve planning and zoning powers to local government.
In Voss v. Lundvall Bros., Inc. 830 P.2d 1061 (Colo.1992), our supreme court held, based on the legislative declaration and scope of regulatory powers of the Oil and Gas Conversation Commission, that a home rule city could not prohibit the drilling. of oil and gas wells within its boundaries. That is, the regulation of the development of oil and gas is a matter of statewide concern and state statute preempts a home rule city's ability to prohibit the activity.
I conclude that after taking into account the similarities and differences in the operative statutes, if a home rule city's authority to prohibit oil and gas development within its municipal boundaries is preempted, so is that of a county which enjoys considerably less autonomy. The same is true of authority to prohibit mining under the MLRA.
In my view, my position is strengthened from the inclusion of the designated mining operation provisions and their inclusion in the MLRA, which evidences the deliberate entry of the state into the regulation of toxic chemicals in mining operations. These provisions define a "designated mining operation" as:
(a) ... [A] mining operation at which: (I) Toxic or acidic chemicals used in extractive metallurgical processing are present on-site; or (I1) Acid or toxic-forming materials will be exposed or disturbed as a result of mining operations.
(b) The various types of designated mining operations are identified in section 34-82-112.5. Such mining operations exclude operations which do not use toxic or acidic chemicals in processing for purposes of extractive metallurgy and which will not cause acid mine drainage.
Section 84-32-108(8.5).
The statute authorizes the Mined Land Reclamation Board to adopt regulations governing designated mining operations considering, among other things, environmental concern; issue permits, and require by rule or condition inspection and certification of any new environmental facility. Section 34-32-112.5(8), C.R.8.2006.
Therefore, taking into account the broad legislative declaration and the specific authorization for the Mined Land Reclamation Board to regulate the use of toxic chemicals in mining and milling operations, I have concluded that whatever the extent of the residual county zoning authority over mining, it does not extend to prohibiting a class of *763mining, here gold mining, by regulating the use of toxic chemicals.
IL.
Next, with respect to express preemption, the express preemption provision of the MLRA can be abbreviated, as pertinent here, to: "[nlo ... political subdivision of the state shall have the authority ... to require reclamation standards different than those established in this article...." Section 84-32-109(6), C.R.S.2006. While the term "reclamation standard" is not defined, the term "reclamation" is defined to include those procedures used during a "mining operation" reasonably designed to minimize disruption to the mining operation while, at the same time, preserve and protect the environment. Section 34-82-108(18), C.R.S.2006. And, "mining operation" includes transportation, concentrating, milling, evaporation, and other processing of the ore.
The MLRA preemption provision, taken in connection with these definitions, clearly and expressly preempts a county's power to regulate, much less prohibit under the guise of land use and zoning, mining and milling operations and methods. The use of eyanide is just such a method. In addition, the designated mining operating provisions granting the Mined Land Reclamation Board authority to regulate the use of toxic chemicals in mining operations is consistent with an express preemption. I recognize the county retains zoning authority over mining as it relates to compatibility of uses, nuisance, and other related matters.
In my view, that which the General Assembly specifically permits, even encourages, and with respect to which it authorizes an agency of the state to regulate cannot be regulated, much less prohibited, under the rubric of a planning and zoning regulation.