The neighbors appealed Judge Todd Taylor’s decision to deny their motion and allow the MMM motion. MMM submitted a Motion that their appeal be denied, but the CO Court of Appeals allowed the appeal to proceed.
The neighbors filed an opening brief requesting reversal of Todd Taylor’s order of remand and to affirm that the District Court should issue an order that MMM must vacate the site. The opening brief also requested adjudication of the remaining four issues that would be dispository if affirmed, so that the case could be finalized.
In September 2018, MMM announced that the facility had been sold to Rock & Rail, which is a Class III railroad that is wholly owned by MMM. Rock & Rail asserts that as a railroad, they are not bound by any local land use or zoning codes, and that they are exempt from essentially all local regulations. Instead, they claim that they are controlled by the Surface Transportation Board, a Federal entity that replaced the Interstate Commerce Commission.
MMM also filed a Motion to the CO Court of Appeals to dismiss the neighbors’ appeal as moot.
On April 18, 2019, the Colorado Court of Appeals issued an Order to dismiss our Appeal of Judge Taylor’s decision from last summer. The bases for this ruling were twofold. First, the case was not “ripe” for an appeal. Second, it became moot when MMM withdrew their USR application, because at that point, any ruling by the COA regarding the USR would have no effect because there was no longer any USR.