     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                July 25, 2019

                               2019COA114

No. 18CA1148, Information Network v. Colo Mined Land —
Energy and Environment — Mining — Mined Land Reclamation
Act

     In this case, a division of the court of appeals concludes for

the first time that under the Colorado Mined Land Reclamation Act,

temporary cessation is a factual status, rather than a legal one.

Therefore, the Colorado Mined Land Reclamation Board lacked the

legal authority to approve a further period of cessation when the

mine had not produced any minerals for more than the ten-year

statutory limitation in section 34-32-103(6)(a)(III), C.R.S. 2018.
COLORADO COURT OF APPEALS                                        2019COA114


Court of Appeals No. 18CA1148
City and County of Denver District Court No. 17CV33475
Honorable Michael A. Martinez, Judge


Information Network for Responsible Mining, Earthworks, and Sheep Mountain
Alliance,

Plaintiffs-Appellants,

v.

Colorado Mined Land Reclamation Board,

Defendant-Appellee.


                         JUDGMENT REVERSED AND CASE
                          REMANDED WITH DIRECTIONS

                                    Division V
                              Opinion by JUDGE TOW
                          Richman and Harris, JJ., concur

                             Announced July 25, 2019


Travis Stills, Durango, Colorado; Roger Flynn, Jeffrey C. Parsons, Lyons,
Colorado, for Plaintiffs-Appellants

Philip J. Weiser, Attorney General, Charles J. Kooyman, Senior Assistant
Attorney General, Denver, Colorado, for Defendant-Appellee
¶1    Information Network for Responsible Mining, Earthworks, and

 Sheep Mountain Alliance (collectively, the objectors) appeal the

 district court’s judgment, affirming the Colorado Mined Land

 Reclamation Board (the Board) order granting the request of Piñon

 Ridge Mining, LLC for approval of a second period of temporary

 cessation. 1 We reverse.

                            I.   Background

¶2    In November 1999, Piñon Ridge Mining was issued a permit

 for a uranium mining operation known as the Van 4 Shaft (the site),

 releasing the company’s predecessor from its permit. The site last

 produced ore in 1989. In March 2014, the Division of Reclamation,

 Mining, and Safety (the Division) approved an initial period of

 temporary cessation for the site, with an effective date of June 13,

 2012.

¶3    In May 2017, the Division received a request for approval of a

 second period of temporary cessation for the site. The objectors

 filed objections to this request. The Board held a hearing on the

 matter. During the hearing, a representative of Piñon Ridge Mining


 1 Additional parties filed objections during the proceedings before
 the Board but did not join this appeal.

                                   1
 testified that minerals had not been extracted since it had taken

 over the site because the depressed market price of uranium made

 production unprofitable. The representative also testified that the

 operator had explored one other avenue for extraction.

¶4    The Board ultimately granted the request for approval of a

 second period of temporary cessation. The district court affirmed

 the Board’s order. The objectors now appeal the Board’s decision.

                              II.   Analysis

¶5    The objectors assert that the district court erred in affirming

 the Board’s order, which, the objectors argue, ignored the plain

 language of the Colorado Mined Land Reclamation Act (MLRA) when

 approving a second period of temporary cessation. We agree.

                         A.   Standard of Review

¶6    The Board is a state agency governed by the State

 Administrative Procedure Act, sections 24-4-101 to -108, C.R.S.

 2018. In reviewing the Board’s actions, we stand in the same

 position as the district court. See Haney v. Colo. Dep’t of Revenue,

 2015 COA 125, ¶ 14. We must set aside an agency action that is

      (I)    Arbitrary or capricious;
      (II)   A denial of statutory right;



                                     2
      (III) Contrary to constitutional right, power,
             privilege, or immunity;
      (IV) In excess of statutory jurisdiction, authority,
             purposes, or limitations;
      (V) Not in accord with the procedures or
             procedural limitations of this article 4 or as
             otherwise required by law;
      (VI) An abuse or clearly unwarranted exercise of
             discretion;
      (VII) Based upon findings of fact that are clearly
             erroneous on the whole record;
      (VIII) Unsupported by substantial evidence when the
             record is considered as a whole; or
      (IX) Otherwise contrary to law, including failing to
             comply with section 24-4-104(3)(a) or 24-4-
             105(4)(b).

 § 24-4-106(7)(b), C.R.S. 2018. “In all cases under review, the court

 shall determine all questions of law and interpret the statutory and

 constitutional provisions involved and shall apply the interpretation

 to the facts duly found or established.” § 24-4-106(7)(d).

                         B.    Applicable Law

¶7    The MLRA was enacted to encourage and foster mining of the

 state’s natural resources and subsequent reclamation of the land

 affected by such extraction. § 34-32-102(1), C.R.S. 2018. Under

 the MLRA, a mining permit may continue in effect even if the

 mining operation “temporarily cease[s] production for one hundred

 eighty days or more,” provided the operator files a “Notice of



                                   3
 Temporary Cessation” with the Office of Mined Land Reclamation. §

 34-32-103(6)(a)(II), C.R.S. 2018. Production must be resumed

 within five years of temporary cessation or the operator must “file[]

 a report requesting an extension of the period of temporary

 cessation.” § 34-32-103(6)(a)(III). But “[i]n no case shall temporary

 cessation of production be continued for more than ten years

 without terminating the operation and fully complying with the

 reclamation requirements of this article.” Id.

¶8    Temporary cessation is defined as “those limited periods of

 non-production as specified according to Section 1.13.” Div. of

 Reclamation, Mining & Safety Rule 1.1(53), 2 Code Colo. Regs.

 407-1. According to Section 1.13, indications that temporary

 cessation has occurred include

           (1)   there are no personnel working at the site
                 for one hundred eighty (180) consecutive
                 days;
           (2)   there are only security personnel at the
                 site;
           (3)   there are personnel other than security
                 people at the site, but they are engaged in
                 activities which can be described as
                 maintenance or housekeeping, or related
                 activity;
           (4)   there are personnel at the site, but they
                 are engaged in activities which are not
                 significantly moving the site towards


                                   4
                    completion of the mining operation. The
                    Board will judge these activities in
                    relation to the size of the operation, the
                    nature of the ore body and other facts;
             (5)    there is no sale or processing of material
                    or movement of stockpiled material;
             (6)    [t]here is only minimal or token
                    excavation of mineral or other material;
                    or
             (7)    mine development has ceased and mining
                    has not recommenced.

  Id. at Rule 1.13.2. In contrast, indications that temporary cessation

  has not occurred are that the extraction of minerals is complete but

  final reclamation-related activities are occurring, or a permit has

  been issued for the site but mining operations have yet to begin. Id.

  at Rule 1.13.3.

              C.    Temporary Cessation is a Factual Status

¶9     As a preliminary matter, we conclude that the district court

  erred in affirming the Board’s order, which treated temporary

  cessation as a legal status, rather than a factual one, and “reset”

  the effective date of that status.

¶ 10   During the Board’s hearing, it was disclosed that in 2011 or

  2012, the Division realized that a large number of mines had not

  been in production for quite some time. Yet, they had been treated

  as being in intermittent status, rather than in a status of temporary


                                       5
  cessation.2 The Division consequently informed the licensees that

  these mines would be “reset” to temporary cessation status. 3 At the

  hearing, the Division representative explained to the Board,

                     So this – like I said, the letter went out in
               2011 [or 2012] requiring everybody to get their
               environmental protection plans, reclaim,
               and/or address this temporary cessation
               status.
                     At that time we were in front of the
               Board. We had objections to some folks going
               into temporary cessation from this intermittent
               status, but we felt it was appropriate to sort of
               reset the bar because this thing had been
               languishing for quite a while, and we felt the
               fresh start was appropriate, especially given
               the changes to the law, the designated mining
               status.

  The Division made clear to these licensees, however, that they

  should not expect approval of a second period of temporary

  cessation.

¶ 11   In approving the request for a second period of temporary

  cessation here, the Board clearly considered temporary cessation to



  2 As described at the hearing, intermittent status is provided to
  operations that conduct mining-related activities seasonally, likely
  because the site is a high-elevation site that can only be accessed in
  the summer.
  3 It is not entirely clear from the hearing whether the Board

  informed these mines of the status issue in 2011 or 2012.

                                        6
  be a legal status that only commenced in 2012 after the bar was

  “reset,” and thus a second approval period was available. In other

  words, the Board felt that a mine was not in a status of “temporary

  cessation” until the request for recognition of that status had been

  approved by the Division or Board. This was error. Under the

  statute and rules, temporary cessation is a factual status that

  cannot be “reset.”

¶ 12   Although “[w]e may consider and defer to an agency’s

  interpretation of its own enabling statute and regulations the

  agency has promulgated, . . . we are not bound by the agency’s

  interpretation.” Bd. of Cty. Comm’rs v. Colo. Pub. Utilities Comm’n,

  157 P.3d 1083, 1088 (Colo. 2007). “In reviewing an agency’s

  construction of a statute, we rely on basic rules of statutory

  construction.” Smith v. Colo. Motor Vehicle Dealer Bd., 200 P.3d

  1115, 1116 (Colo. App. 2008). Thus, we seek to give effect to the

  intent of the General Assembly by primarily looking at the plain

  language of the statute. Id.

¶ 13   Temporary cessation is consistently defined as a period of

  nonproduction, rather than a status granted to a particular mining

  operation only after the Division (or the Board) approves a request


                                    7
  for recognition of that status. Temporary cessation is defined by

  the Division as “limited periods of non-production as specified

  according to Section 1.13.” Div. of Reclamation, Mining & Safety

  Rule 1.1(53), 2 Code Colo. Regs. 407-1. Under Section 1.13,

  “Indications of Temporary Cessation” include consideration of what

  type of personnel are present at the site and the sale and excavation

  of minerals. Id. at Rule 1.13.2. Neither the definition nor the

  referenced factors suggest that temporary cessation commences on

  any date other than when production ceases on the site. In other

  words, a mine is in temporary cessation status once 180 days have

  passed without production, even if the Division or the Board has

  not received or acted upon the required notice.

¶ 14   Temporary cessation is also discussed as a period of

  nonproduction within the definition of “life of the mine.” See § 34-

  32-103(6)(a). The life of the mine is the period in which a mining

  permit is in effect. Id. When referencing temporary cessation, the

  statute requires that “[p]roduction is resumed within five years of

  the date production ended,” § 34-32-103(6)(a)(III) (emphasis added).

¶ 15   Furthermore, once the notice is filed and the Division approves

  the initial period of temporary cessation, that period is backdated to


                                    8
  begin the initial day that production ceased. Div. of Reclamation,

  Mining & Safety Rule 1.13.5(1)(a), 2 Code Colo. Regs. 407-1. If the

  approval of the Division were a prerequisite to recognizing

  temporary cessation, this period would begin when the Division

  acted upon the notice. Therefore, the Board should have analyzed

  temporary cessation as a status based on the fact that the mine

  was not producing, rather than a status based on the legal

  recognition of that nonproduction in 2012.

   D.    The Board Erred in Approving the Request for Another Period
                           of Temporary Cessation

¶ 16    Because temporary cessation is a factual status, we must

  determine when temporary cessation truly began. As relevant to

  our inquiry, the Board found that

        (1)   the Division issued a permit for the site to the preceding

              operator in 1978;

        (2)   the site last produced ore in 1989;

        (3)   the Division issued a new permit for the site to the

              current operator in 1999;

        (4)   the Division accepted an environmental protection plan

              for the new permit on August 31, 2012; and



                                      9
       (5)   the Division approved the first period of temporary

             cessation for the site on March 6, 2014, with an effective

             date of June 13, 2012.

¶ 17   The Board’s findings suggest that temporary cessation began

  no later than 1999. 4 Although the Board on appeal argues that the

  filing of an environmental protection plan in 2012 was part of

  “active mining,” the plan was accepted almost two months after the

  Division approved the site’s request for temporary cessation status.

  Nor is there any indication that there were mine employees at the

  site preparing for the commencement of a mining operation. See id.

  at Rule 1.13.3(2). Rather, the status of the site falls squarely within

  the final indication of temporary cessation: “mine development has

  ceased and mining has not recommenced.” Id. at Rule 1.13.2(7).

¶ 18   Since the site’s period of temporary cessation began no later

  than 1999, production had to resume by 2009 to prevent



  4 Although there is nothing in the statutes or the rules to suggest
  that corporate succession restarts the clock on temporary
  cessation, and thus temporary cessation may have begun as early
  as 1989, we need not make that determination here. Even if
  temporary cessation did not begin until 1999, the Board erred in
  continuing to approve temporary cessation status more than ten
  years later.

                                    10
  termination of the operation under section 34-32-103(6)(a)(III). But

  the site never recommenced production. Therefore, the Board

  abused its discretion in approving the request for another period of

  temporary cessation in 2017. Because temporary cessation of the

  site has continued for more than ten years, the operation must be

  terminated and the operator must fully comply with reclamation

  requirements under the MLRA.

                              III.   Conclusion

¶ 19   The judgment is reversed, and the case is remanded to the

  district court with directions to remand to the Board for termination

  of the operation and compliance with the reclamation requirements

  as set forth in the MLRA.

       JUDGE RICHMAN and JUDGE HARRIS concur.




                                      11
