TELLURIDE — In a complaint filed in District Court last week local conservation group Sheep Mountain Alliance alleged that the Montrose County Commissioners violated county zoning rules and abused their discretion when in September they unanimously approved a special use permit allowing the construction and operation of a uranium mill on 880 acres in Paradox Valley zoned for agricultural use.
“Our main point is the industrial use in an agricultural zone,” said plaintiff’s attorney Travis Stills of the Durango-based Energy Minerals Law Center describing the grounds for the lawsuit against Chairman David White, Vice Chairman Gary Ellis, and Commissioner Ron Henderson.
“Part of allegation is that they did so in a manner that was an abuse in discretion,” he continued.
“They used the special use permit process to basically rezone agricultural land as industrial,” said Sheep Mountain Alliance Executive Director Hilary White.
The suit also charged that Montrose County Planning and Development Director Steve White abused his discretion and acted beyond his authority when making decisions regarding the special use permit application filed in July 2008 by Energy Fuels Resources Corporation, a wholly-owned subsidiary of Toronto-based Energy Fuels Inc.
“We were concerned with the way the process was handled and obviously concerned with the outcome,” said White.
“We felt there were sufficient grounds to file a complaint,” she continued.
Finally the complaint alleges that a meeting took place in March 2008 between EFRC representatives, the BOCC, three Montrose County employees, a Colorado Department of Public Health and Environment employee, and one member of the public in violation of state open meetings laws.
At that meeting transportation, water, use of uranium, jobs and salaries, and the contents of the special use permit application were discussed, according to the complaint.
The Colorado Sunshine Law states that, “All meetings of a quorum or three or more members of any local public body, whichever is fewer, at which any public business is discussed or at which any formal action may be taken are declared to be public meetings open to the public at all times.”
Although no minutes were taken nor a recording made, the BOCC made several decisions regarding the proposed mill at that meeting including one to seek a special use permit for the agricultural district as a means to approve the EFRC proposal, according to the complaint.
“As best as we can tell the decisions were arrived at outside the public process,” said Stills, who wrote in the court filing that “These decisions predetermined the outcome of the challenged [special use permit] proceedings and constitute an abuse of discretion and actions in exceedance of authority.”
“There was no real opportunity to influence their decision making,” he said.
When reached by telephone Energy Fuels Chief Executive Officer George Glasier denied that any meetings held between company representatives and government officials violated state laws.
“If there were meetings there certainly weren’t any decisions made,” he said. “Our staff was talking to their staff early on.”
BOCC Chairman David White was unable to comment on the lawsuit when reached by telephone because he had not yet read through it, but he did note that he did not yet sit on the BOCC at the time of the alleged illegal meeting.
Neither Montrose County Attorney Bob Hill nor Planning Director Steve White returned phone calls seeking comment.
Glasier also said that his company’s decision to seek a special use permit for the agricultural district rather than to attempt to rezone the land as industrial had been based upon county procedure.
“We did it the way the county told us to do it,” he said. “I believe the county is right.”
Rather than seeking damages the lawsuit asks that the special use permit be invalidated and the matter remanded back to the BOCC for reconsideration.
It also asks that the uranium mill and its related waste disposal facility be declared industrial uses not allowed on land zoned for agricultural use.
Glasier said he considered the chance of SMA prevailing in the lawsuit a “long shot,” but that regardless of its outcome his plans to build the nation’s first uranium mill in three decades will proceed.
“Hopefully before the state permit is issued there will be some resolution [to the present lawsuit],” he said, confirming that his company expects to file for that permit within the next 30 days.
Colorado is among 37 “agreement states” to which Nuclear Regulatory Commission transfers authority to regulate and license radioisotope byproduct materials, source materials including uranium and certain nuclear materials.
In the event that SMA prevails, “Certainly we’ll go in for industrial zoning,” Glasier said.
“We’re not abandoning this mill site on a simple little lawsuit like this.”