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DEPARTMENT OF LAW
JOHN P. MOORE OFFICE OF THE ATTORNEY GENERAL JOHN E. BUSH
ATTORNEY GENERAL 104 STATE CAPITOL DEPUTY ATTORNEY GENERAL
DENVER, COLORADO 80203
November 18, 1974
Mr. Norman Blake
Colorado Division of Mines
1845 Sherman - Room 209
Denver, Colorado 80203
RE: Applicability of Colorado Open Cut
Land Reclamation Act to Counties
Dear Mr. Blake :
This letter is in response to your letter of October 16, 1974, in which
you asked three questions. I trust that the following advisory opinion will
be of assistance to you.
FACTS : Counties engage in minor mining operations when they acquire gravel
for road building purposes. The gravel usually comes from gravel pits which
vary in size from the small "borrow pits" to larger strip mine pits:
The Colorado Open Cut Land Reclamation Act of 1969 C.R.S. 1963, 92-13-1
et seq. (1969 Cum. Supp. ) provides for the reclamation and conservation of
land subjected to surface disturbance by open cut mining. The Act requires
"operators" engaging in such mining activities to obtain permits and to
post a bond or other security insuring performance of the reclamation.
"Operator" is defined by the Act to include "a person, firm, or corporation
enga.7ed in and controlling an open cut mining operation." C.R.S. 1963,
92-13-3 (4) (1969 Cum. Supp. )
OLESTION 1 : Are Counties subject to the provisions of the above cited
Act with regard to county owned pits?
CONCLUSION: Counties are not subject to the Act.
ANALYSIS: The Colorado Open Cut Land Reclamation Act of 19(19 , C. R.S. 1963,
92-13-1 et seq. (1969 Cum. Supp. ) , by its own provisions , applies to
"operators". By definition of the word "operator" the Act, therefore,
limits its scope to a "person, firm, or corporation."
Counties are those territorial divisions into which the State is
divir("d . C. R.S . IgG3, 3h- L-1 et seq. These political and civil divisions
740517
asy
• Dr. Norman Blake
November 18, 1974
' Page 2
of the territory constituting the State were created to aid in the
administration of State governmental affairs. Dixon v. The People,
53 Colo. 527, 127 P. 930 (1912) ; Colorado Investment and Realty Co. v.
Riverview Drainage District 83, Colo. 468 266, P. 501 (1928) ; Gamewell v.
Strmaler, 84 Colo. 459, 271 P. 180 (1928) . Indeed, counties are merely
instruments of the State which are created to carry out the will of the
State. Board of County Commissions of Jefferson County v, City and County
or Denver, 150 Colo. 198, 372 P. 2d 152 (1962), citing Railroad Company
v. County of Otoe, 83 U.S. 667 (1872) .
As political agencies and subdivisions of a state, counties are not
generally considered to be "persons." Stermer v. LaPlata County, 5 Colo.
App. 379, 38 P. 839 (1894) ; Leonard v. State Highway Dept. , 29 N.J. Super,
188, 102 A. 2d 795 (1950) . In Stermer, supra. , a statute subjected "persons"
to garnishment. The court decided that counties are not "persons" and declined
to permit garnishment as against a county. ,
The Court in Stermer further considered whether or not counties are
"corporations" within the usual meaning of the naked word. The court held
they were not. While the court relied heavily on its analysis of legislative
intent in reaching such conclusion--similar evidence of which we do not have
in the instant matter--the court does point out that counties are considered
by most authorities to be "quasi" - corporations", i.e. , neither corporations
proper not municipal corporations. Hence, unless the legislative intention
to include quasi - corporations within the meaning of "corporations" is made
clear, the court will recognize a distinction and exclude them.
The word "firm" has seldom been judicially interpreted. Ballantine `s
Law Dictionary, 3d edition, defines a firm to be ". . an unincorporated
business, particularly a partnership. " While a county is a mere quasi -
corporation, it is not unincorporated, nor is a county in "business" as one
normally thinks of an entity seeking private advantage and emolument.
In view of the answer to your first question it is unnecessary to
answer the other two questions.
S 'nce�re�ly�,
i
ohn P. Moore
Attorney General
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