Transit Mix Concrete, whose application to open a major open-pit aggregate mine on the historic Hitchrack Ranch south of Colorado Springs was denied by the Colorado Mined Land Reclamation Board last year, filed a motion to reconsider with the board on Wednesday.
The lengthy motion claims, “The Board’s decision overruled the recommendation of the Division of Reclamation, Mining and Safety based on information presented for the first time by the opponents at the hearing. This information was not disclosed by the objectors at the pre-hearing conference, in violation of Rule 2.6(2). Transit Mix argues that such evidence should not have been allowed to be presented at the Board hearing and thus Transit Mix deserves an opportunity to rebut that information on rehearing.
“The Board also has not explained, with citations to the record, why the evidence presented by the objectors is considered adequate to rebut the significant technical information presented by Transit Mix in its application and accepted by the DRMS staff, and why the objector’s evidence overcomes the deference that the Board owes to the DRMS staff under the Colorado Administrative Procedure Act.”
The motion also impugns the motives of the 100-plus objectors from surrounding neighborhoods, who opposed the quarry on multiple grounds.
“The only ‘evidence’ offered by the objectors,” concluded Transit Mix’s attorney in the motion “is that they simply do not want another quarry nearby, despite ample evidence in the application that the quarry will meet and exceed all statutory and regulatory requirements to minimize impact on the surrounding area. That is simply not the standard for the decision under the Mineral Resources statute which creates the Board as recognized by DRMS. The Board members more or less admitted during deliberation that Transit Mix met the wildlife standard in the statutes and Board rules, but then in contradiction to that acknowledgment, voted to deny on the basis of those statutes and rules. There is simply no credible evidence of water issues, as also found by DRMS. The additional evidence supplied by Transit Mix further emphasizes the lack of risk to the water and wildlife areas. Transit Mix has also shown that, consistent with the 1909 patent, the Land Board granted it access to the quarry, which overrides any subsequent easement to the Eagles Nest residents.
“Transit Mix is entitled to reconsideration based on the procedural deficiencies noted above and on the misapplication of the Board Rules.”
Tom Fellows, a member of the citizen’s group that opposed the quarry, said, “We’re waiting and watching.”
Arguments against the quarry included impacts upon wildlife (including threatened and endangered species), traffic impacts on Highway 115, impacts upon settled nearby neighborhoods, road access and safety issues and possible degradation of water quality and availability.
If the board agrees to reconsider its decision, that might require a whole new round of public hearings and dueling attorneys.
“My time on Board of RE Appraisers suggests the petition to reconsider is first and then additional discussion,” said Fellows in an email. “My reading of the petition is that it is repetitive and basically argues ‘we are right and they are wrong.’ I can’t imagine going through the whole record again!!”
The board’s decision is expected within several weeks.