The Colorado Supreme Court on Tuesday probed the balance of state and county power as justices decide whether Summit County can ban a type of gold mining that uses cyanide.
The court heard oral arguments in a case brought by the Colorado Mining Association against the county.
At issue is a Summit County-wide zoning ban on open-pit cyanide heap-leach gold mining — which uses a cyanide solution to separate gold from rock.
Concerns over cyanide mining go back to the 1993 Summitville Mine disaster, which left a square mile of waste and contaminated the Alamosa River.
The federal government had to take emergency action at the bankrupt operation to prevent an earthen dam from releasing a pool of cyanide-laced water.
In the wake of the mine disaster, the state adopted tougher rules and oversight for mines using toxic chemicals.
The legal clash focuses on whether state statutes pre-empt the county’s ability to regulate mining.
The case is one of a string of lawsuits that have reached the Supreme Court or appeals courts over the role of counties in regulating activities such as oil and gas drilling.
The power to regulate mining is vested in the state under the Mined Land Reclamation Act, argued Paul Seby, attorney for the mining association.
Seby told the justices that the act explicitly gives the power over mining and reclamation activities to the state.
Josh Marks, representing Summit County, countered that the same section of the act Seby cited also requires operations to comply with local land-use and zoning rules.
“The intent was that the counties have a place at the table,” Marks said.
Justice Alex Martinez pressed Seby, noting that the reclamation act clearly states mining operations have to comply with local zoning.
Seby said that the state statute had “narrowed the county’s balance of power.”
“Then what’s left for the county?” asked Chief Justice Mary Mullarkey.
Counties still have the power to zone mining out of areas such as waterways and residential areas — the county just can’t issue a total ban, Seby said.
Summit County’s Marks said “zoning is the power to ban or restrict.”
“There is a land-use authority, or there isn’t,” Marks said.
Justice Gregory Hobbs Jr. pointed out that the legislature did not ban cyanide mining — even after the Summitville emergency — so how could counties?
“Where is the authority?” Hobbs asked.
“What happens when all the counties in Colorado ban cyanide mining?” Hobbs said.
Marks said that each county would be making its decisions based on local conditions and risks.
Four other counties — Gunnison, Gilpin, Conejos and Costilla — have cyanide-mining bans.
The state’s only operating cyanide heap-leach mine — the Cripple Creek & Victor Gold Mining Co. — is in Teller County.
Mark Jaffe: 303-954-1912 or mjaffe@denverpost.com
