Hearing set for Colson Excavating permit amendment as objectors press bonding, reclamation, flooding and access concerns

Lisa Thompson, a senior NEPA and compliance specialist with the Division of Reclamation, Mining and Safety (DRMS), opened a Sept. 3 prehearing conference on behalf of the Mined Land Reclamation Board to set the process for a contested amendment to the Curtwright Pit construction-materials permit.

The amendment application by Colson Excavating Company Inc. would expand the permit area from 77.4 acres to 97.4 acres (an increase of 22.9 acres) and increase the reclamation bond to $124,795 from about $58,400, DRMS staff said. The division recommended approval over objections; opponents objected to that recommendation and identified multiple issues they want the board to consider.

The O'Brien Living Trust and other objectors pressed several substantive objections that remain unresolved: whether the proposed reclamation plan is adequate and likely to succeed, whether periodic flooding and drainage at the site have been adequately addressed, whether the bond amount is sufficient if the operator fails to complete reclamation, the legal right of the applicant to access the O'Brien property for reclamation, and whether actions will affect Preble’s meadow jumping mouse habitat.

“I will be the prehearing conference officer today,” Thompson told participants at the start of the meeting. Patrick Landberg, the DRMS environmental protection specialist who reviewed Amendment 1, summarized the amendment’s technical elements, including backfilling a pond area, installing a drainage swale to mitigate periodic flooding, regrading slopes to 2:1 to 3:1, and updating the reclamation plan for areas disturbed before 1981.

Linda O’Brien, a listed objector, described her long involvement with the matter and ownership history: “I’ve been a party to all of this since 1986 when my father signed the paperwork.” Counsel for several objectors said they had retained new expert reports (including a certified floodplain manager and biological analyses) and that those reports supplied late evidence the division and other parties had not yet had time to analyze.

Objectors argued that the proposed reclamation plan lacks sufficient topsoil, mulching and irrigation to establish pasture and that an expert report shows “the plan does not have a reasonable probability of success,” a characterization made on the record by an objector’s counsel. DRMS staff said the amendment proposes that reclamation will be completed and described a timeline that would put the bulk of earthwork and grading within about 18 months, with vegetation establishment expected to continue after that.

On hydrology, objectors and their consultants said the division’s engineering record should be tested against new floodplain analysis. Colson’s counsel said they received a concurrence letter from the U.S. Fish and Wildlife Service dated Feb. 20, 2025, covering activities in areas previously determined to be poor habitat for Preble’s meadow jumping mouse and that the latest concurrence did not require a new consultation.

On access, objectors urged the board to require a current, signed landowner authorization before allowing the operator to enter the O’Brien property for reclamation work. Colson’s representatives and DRMS counsel responded that longstanding access and documents in the DRMS file support the applicant’s ability to perform reclamation and that disputes over fee-title access are matters for a court, not the board. “We don’t think this is the place to resolve it,” counsel for the applicant said on the record when objectors raised the legal-access question.

The prehearing conference set procedural deadlines and hearing logistics. The board hearing was scheduled for Sept. 17, 2025, beginning at 9:00 a.m. The draft prehearing order will be issued to parties by close of business on Sept. 8, 2025. Parties may file motions by 5 p.m. on Sept. 5, and responses to motions are due by 5 p.m. on Sept. 15. DRMS and the parties agreed on a hearing-day allocation of presentation and rebuttal times (proposed total hearing time about 250 minutes, subject to the board’s final order). Parties were told they may provide supplemental witness and exhibit lists by the close of business the day after the prehearing conference and that remote witness appearances by Zoom are acceptable if arranged in advance with the board administrator.

The prehearing officer and DRMS confirmed that 39 timely objections were submitted during the public comment period and that Larimer County had submitted comment letters but did not file an objection. DRMS staff noted the amendment was submitted in response to a signed board order dated Nov. 28, 2023 (violation MB2023-012) requiring the operator to submit an amendment to encompass affected lands and update the reclamation plan.

Next steps include DRMS issuing the draft prehearing order, exchange of final witness and exhibit lists, and the Sept. 17 board hearing where parties will present testimony and cross-examination on the identified issues. The board will decide whether to adopt, modify or reject the draft prehearing order and then proceed to a contested hearing on the merits.