Associated General Contractors v. Board of Oil, Gas & Mining

2001 UT 112, 38 P.3d 291, 437 Utah Adv. Rep. 35, 2001 Utah LEXIS 198, 2001 WL 1636759
CourtUtah Supreme Court
DecidedDecember 21, 2001
Docket20000389
StatusPublished
Cited by52 cases

This text of 2001 UT 112 (Associated General Contractors v. Board of Oil, Gas & Mining) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Associated General Contractors v. Board of Oil, Gas & Mining, 2001 UT 112, 38 P.3d 291, 437 Utah Adv. Rep. 35, 2001 Utah LEXIS 198, 2001 WL 1636759 (Utah 2001).

Opinion

RUSSON, Associate Chief Justice.

11 Appellant Associated General Contractors ("AGC") filed suit challenging the Board of Oil, Gas and Mining's ("the Board") promulgation of a rule defining the terms "sand," "gravel," and "rock aggregate" as used in sections 40-84(8)(b) and 40-8-4(8)(b) of the Utah Code. The district court upheld the rule, granting summary judgment in favor of the Board. We affirm.

BACKGROUND

T2 The Utah Mined Land Reclamation Act ("the Mining Act") requires affected mining operations within the state to ensure that their lands are restored "during or after mining" to a "safe, stable, ecological condition and use which will be consistent with local environmental conditions." Utah Code Ann. §§ 40-8-4(14), -12.5 (1998). To implement this objective of "reclamation," the Mining Act charges the Board with "en-actling] rules ... necessary to carry out the purposes" of the statute. Id. § 40-8-6(1). The statute further authorizes the Board to "take such other actions within the purposes of this act as may be necessary to enforce its provisions." - Id. § 40-8-6(4).

13 In 1987, the legislature amended the Mining Act to restrict its regulatory scope. Specifically, the new amendment exeluded from regulation the extraction of sand, gravel, and rock aggregate. The statute now reads, " 'Deposit' or 'mineral deposit' excludes sand, gravel, [and] rock aggregate." Id. § 40-8-4(8)(b). Likewise, the statute states that the term " '[mJining operation' does not include ... the extraction of sand, gravel, and rock aggregate...." Id. § 40-8-4(8)(b). The amendment, however, did not define sand, gravel, or rock aggregate.

4 Subsequently, on February 7, 1997, the Board proposed a draft rule defining the terms sand, gravel, and rock aggregate as used in the Act. Noting that such definitions were necessary to "clarify [the Act's] exemptions to the regulated community," the draft rule interpreted sand to mean sedimentary, "naturally occurring unconsolidated or moderately consolidated 1 accumulation of rock and mineral particles, the dominant size range being between 1/l6mm to 2mm." Likewise, the draft rule proposed defining gravel to include sedimentary, "naturally occurring unconsolidated or moderately consolidated accumulation of rock and mineral particles" predominantly sized 2 mm to 10 mm. Finally, the draft rule sought to define rock aggregate as "those consolidated rock materials occurring within or above a sand deposit, a gravel deposit or a sand and gravel deposit that were emplaced by sedimentary processes acting contemporaneously with or subsequent to the formation of the sand or sand and gravel deposit."

15 Following proposal of this draft rule, the Board requested informal public comment on its recommended definitions of sand, gravel, and rock aggregate. Accordingly, the Board notified 173 Utah counties, cities, and other interested parties of the proposed rule *294 in a letter dated July 25, 1997. In addition, the Board accepted public comment and testimony on the proposed definitions at five separate briefing sessions held in May, June, July, and October 1997 and January 1998.

T6 The Board also conducted three public meetings concerning its proposed definitions on November 25, 1997, December 15, 1997, and January 28, 1998. Parties attending these meetings consisted of both concerned citizens and representatives of interested parties and governmental entities, including AGC. During its December 15 meeting, the Board requested that participants submit additional written comments on the proposed definitions. - Subsequently, the Board received the requested comments, which included various suggested revisions to the draft rule's definitions of sand, gravel, and rock aggregate. Utah County, for instance, claimed that the Board's proposed definition of rock aggregate was too much "like a standard geology definition," and thus urged the Board to instead adopt a definition based on economies. Similarly, - AGC _ contended throughout the process that the Board should promulgate a rule defining sand, gravel, and rock aggregate as materials that "inherently halve] no greater value than the material around" them. The Utah Mining Association, however, wrote to the Board during the informal comment period in support of the proposed definitions. Its letter stated, "[Wle have reviewed the [proposed] definition[s] and have no objection.... We appreciate that you presently do not have any measurement to differentiate between [mining and sand, gravel, and rock aggregate operations,] and support the concept embodied in the proposed definition[s]."

17 At the conclusion of its January 28, 1998, meeting, the Board decided "to proceed forward with [formal] rulemaking regarding the definition of sand, gravel, and rock aggregate." However, the Board further determined that while it would continue to propose the definitions of sand and gravel contained in the draft rule, it would alter the proposed definition of rock aggregate to reflect a definition that had been previously challenged in Larson Limestone Co. v. State, Division of Oil, Gas & Mining, 903 P.2d 429 (Utah 1995). 2 _ That - definition - read: " TRlock aggregate' ... mean[s] rock materials associated with a sand deposit, gravel deposit, or sand and gravel deposit that were created by alluvial sedimentary processes. [TJhe definition of rock aggregate specifically excludes any solid rock (bedrock) exposed at the surface of the earth or overlain by unconsolidated material."

18 Accordingly, on February 3, 1998, the Board initiated a formal rulemaking for defining sand, gravel, and rock aggregate. First, the Board published notice on February 8, 1998, in the state's two major newspapers seeking public comment on the proposed rule. Then, on February 25, 1998, the Board conducted a formal, on-the-record hearing to receive evidence on the proposed rule. At the hearing, Lowell Braxton, director of the Utah Division of Oil, Gas and Mining ("the Division"), 3 explained why the Division supported definitions "based on geological distinctions instead of the end use" of materials. He stated:

We have a statutory obligation to regulate non-coal mining activity that does not contemplate an end use or a specific commodity. In other words, we regulate the activity, not the specific commodities, unless otherwise exempted.
Second[ ], ... [tlhe legislative findings [of the Mining Act] state that mined land should be reclaimed to promote post-mining land uses and that reclamation requirements need to reflect the diversity of topographic, geologic, economic, and other criteria specific to a given deposit. Therefore, ... reclamation of disturbances, not commodities-specific or end-use reclamation, is directed by statute.
*295 [Finally, tlhe [Megislature exempted from regulation ... sand, gravel, and rock aggregate ..., again, with no mention of end use.

Mr.

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2001 UT 112, 38 P.3d 291, 437 Utah Adv. Rep. 35, 2001 Utah LEXIS 198, 2001 WL 1636759, Counsel Stack Legal Research, https://law.counselstack.com/opinion/associated-general-contractors-v-board-of-oil-gas-mining-utah-2001.