Martin Marietta Materials Inc. has petitioned the Colorado Supreme Court to review a state Court of Appeals ruling in favor of Save Our St. Vrain Valley, an ecological activist coalition that’s been working to keep the company from mining gravel on hundreds of acres in the Hygiene area west of Longmont.
Last month, Martin Marietta’s attorneys filed paperwork arguing that the three-judge Court of Appeals panel had erred in their April ruling that Boulder County’s special use permit for gravel mining on the property in question, originally issued in 1998, had expired because of a lapse in certain kinds of relevant activities there.
That Court of Appeals ruling reversed an October 2020 Boulder District Court decision that held the permit had not lapsed.
Save Our St. Vrain Valley, the organization that’s been fighting for several years to prevent the mining on the Hygiene area property from resuming, had appealed that 2020 district court decision to the Colorado Court of Appeals, and on Friday its members filed its opposition to the Colorado Supreme Court taking up the case.
At issue has been the 1998 special use permit issued when Boulder County commissioners approved a resolution for a gravel mining operation by Western Mobile Boulder Inc. on 647 acres of an 881-acre property southeast of North Foothills Highway and Colo. 66 and east of Lyons, and whether that permit, later transferred to Martin Marietta, was still applicable more than 20 years after initially being granted.
Boulder County’s Land Use Code provides that such permits will lapse if there has been no activity under the permit for five or more years, according to county officials.
Since 1998 there have been long periods of time when mining did not occur at the site, but Martin Marietta has argued that since it purchased the property in 2011 “it and its predecessors have undertaken many ground-moving, administrative and regulatory compliance activities over the years to comply with the 35 conditions imposed by the” special-use permit, according to court documents.
Those activities included “reclamation of previously mined areas, obtaining all applicable permits, performing weed management and reseeding, submitting site and landscaping plans, and performing groundwater monitoring,” according to documents, but the Court of Appeals ruled those kinds of activities didn’t apply to the status of the company’s permit.
If the Colorado Supreme Court decides not to take up the case — or if it does and also rules against Martin Marietta — the company would have to apply to Boulder County for a new special use permit for gravel mining on the property.
In Martin Marietta’s May 13 petition for the Supreme Court to consider the appeal, one of the arguments by attorneys representing the company is that the state’s high court should hear the case “to resolve lower court confusion” about the “standard of review” that applies to a lower governmental body’s “interpretation of its laws.”
The company’s attorneys wrote that the Court of Appeals opinion “amplifies confusion among lower courts as to the deference agencies deserve when interpreting their own laws.”
The state Supreme Court can “clarify the meaning of a special use permit, or at least the body entitled to define that meaning, offering much-needed guidance to almost every Colorado local government,” Martin Marietta’s petition states.
However, Save Our St. Vrain Valley said in its Friday response that “Martin Marietta seeks to inject ‘confusion’ intothis case, but there is none.”
James Silverstro, the attorney for the organization wrote in that filing, “There is no need for further discretionary review by this (Supreme) Court, and the petition should be denied.”
Silvestro wrote, “The Court of Appeals concluded that Boulder County’s ‘use-it-or-lose-it’ provision unambiguously requires a special use permit-holder to engage in its approved special use at least once every five years. Here, it was undisputed that Martin Marietta’s special use permit for open pit gravel mining has not been used since at least 2006.”
Andrew Peters, the attorney who filed Martin Marietta’s petition to the Supreme Court, said in an email that he had forwarded the newspaper’s emailed and phoned message requests for more information “along to the folks at Martin Marietta, and they have your contact information as well. I expect they will be in touch if they determine it’s appropriate to discuss this matter.”
Martin Marietta did not reply Tuesday to an email requesting comments from its public relations staff.
Amanda Dumenigo, executive director of Save Our St. Vrain Valley, said in an email that Martin Marietta now has the opportunity to submit a reply brief.
“Barring something unexpected, we will not have anything else to do on this for four to 12 months while the petition is pending before the Supreme Court. In all likelihood, we will learn later this year or at the beginning of next year whether the Supreme Court is going to allow for an additional appeal.”
This content was originally published here.