AGO 85-4.

Case Date:February 28, 1985
Colorado Attorney General Opinions 1985. AGO 85-4. February 28, 1985Department of Law Attorney General Opinion FORMAL OPINION of DUANE WOODARD Attorney General Opinion No. 85-4 AG Alpha No. HL AD AGAOF Dr. Thomas M. Vernon Executive Director Colorado Department of Health 4210 E. Eleventh Avenue Denver, Colorado 80220 RE: Colorado Department of Health condemnation authority under section 25-11-303(1)(d), C.R.S. (1982)Dear Dr. Vernon: This opinion is in response to your January 25, 1985 letter in which you requested an opinion regarding the State of Colorado's ability to condemn properties under the Uranium Mill Tailing Remedial Action Program ("UMTRAP") and an indication as to what statutory change would be necessary to provide condemnation authority. QUESTION PRESENTED AND CONCLUSION Your request for an attorney general's opinion presents the question: Does Department of Health authority to acquire property pursuant to subsection 25-11-303(1)(d), C.R.S. (1982) include condemnation authority? Condemnation authority is vested in the state and may not be exercised in the absence of an express or necessarily implied statutory delegation. My opinion is that the Colorado General Assembly has neither expressly nor impliedly delegated condemnation authority in subsection 25-11-303(1)(d), C.R.S. (1982); and therefore, the Department of Health does not have the ability to condemn property for UMTRAP purposes. ANALYSIS The Radiation Control Act, section 25-11-303, C.R.S. (1982), authorizes the Department of Health to participate in implementation of the "Uranium Mill Tailings Radiation Control Act of 1978." Pursuant to subsection 25-11-303(1)(d), C.R.S. (1982), the department has authority to: (d) Acquire and dispose of any designated processing site, including any interest in such site, and any site to be used for the permanent disposition and stabilization of residual radioactive materials; This authority to acquire property is an authority to acquire property by gift, transfer, or negotiated purchase, and does not expressly include the power of eminent domain or condemnation authority over designated processing and disposal sites. This interpretation is supported by Colorado case law. With respect to the power of eminent domain, the Colorado Supreme Court has stated: It is fundamental that the power of eminent...

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