Limestone aggregate stone close-up.

Final order set in Garfield County case with RMI

Affirms county’s ability to regulate permittees on federal land through special use permits

April 11, 2023

A final order is set in a case between Rocky Mountain Industrials, Inc. (RMI) and the Garfield County Board of County Commissioners (BOCC), affirming the county’s ability to regulate permittees on federal land through the special use permitting process. In February, the Colorado Court of Appeals upheld a notice of violation issued by Garfield County to RMI from 2019, concluding that the county’s seasonal restriction was not preempted by federal law – an opinion that became a final order on March 31, 2023.

The court of appeals issued its opinion finding that the county has the right to enforce its special use permit (SUP) conditions on RMI, which is a permittee on federal land. On June 26, 2021, Garfield County District Court Judge Anne Norrdin rejected legal claims made by RMI that the BOCC lacked the authority to regulate certain aspects of RMI’s Mid-Continent Quarry located outside of Glenwood Springs.

In its 32-page ruling, the appellate court agreed with Norrdin that the county has the authority to impose environmental regulations on permittees on federal public land where the environmental regulation does not conflict with the federal law. The appellate court found the county’s SUP limitation on certain mining operations during the winter season (Dec. 15 – April 15) is reasonable because it is not absolute, is temporary, and accomplishes the purpose of enhancing the presence and protection of big-game wildlife.

Further, the court found that the Bureau of Land Management’s (BLM) seasonal exception to RMI’s mining permit only controls so long as RMI remains in compliance with the county’s SUP seasonal restriction, as a local environmental regulation, meaning that just because the BLM stated that RMI could operate during the winter season, it did not excuse the company from the winter restriction imposed by the county. RMI had made other arguments against the county’s ability to regulate its activities on federal land.

Norrdin had granted summary judgment for the county on RMI’s due process claims and had denied its discovery requests. The company had argued its substantive and procedural due process claims were based upon the deprivation of its so-called “mining rights,” including its interest in mining and processing limestone, alleging this occurred when the county issued the notices of violation.

RMI asserted that it had a protected property interest in mining limestone at the quarry because it is the holder of mining permits and the lessee of federal land. However, the appellate court noted that the county’s seasonal restriction had been in place for decades; RMI was aware of the restriction and the process it could follow to ask the county to change the restriction; and the BLM’s exception to the winter closure was for a single season and not applied in perpetuity.
RMI chose to disregard the county’s process and mine during the seasonal restriction.

Specifically, the appellate court provided “[t]his conduct recalls an old proverb: ‘It is easier to ask forgiveness than to get permission.’” Ultimately, the court of appeals found that RMI did not prove that it had a federal right to mine that was superior to the exercise of state police powers and therefore had no protected property interest to support its due process claims.

RMI claimed that the district court should have permitted a continuance to allow for additional discovery and argued that it had motions to compel discovery responses issued to individuals associated with the City of Glenwood Springs and the non-party Glenwood Springs Citizen’s Alliance that were outstanding. RMI also argued that it wanted a continuance to depose certain county officials.

The appellate court found that summary judgment on the substantive issues was appropriate and therefore there was no basis to determine the district court had abused its discretion on denying RMI’s request to continue for discovery purposes.

The district court granted the county its costs to defend the litigation because the county was determined to be the prevailing party, since the notices of violation still stand, the preemption issues were resolved in the county’s favor, RMI’s constitutional claims were rejected in full, and the county’s regulatory and enforcement authority was affirmed. The court of appeals also granted appellate costs to the county since it affirmed the district court’s ruling on all orders contested on appeal.

RMI did not to file for discretionary relief on the opinion, which was issued on February 16, 2023. The company was required to file a petition for rehearing within 14 days of the opinion, or by March 3, 2023. Since RMI did not file a petition for rehearing, it was required to file a petition for certiorari to the Colorado Supreme Court within 42 days of the opinion, or by March 31, 2023.