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Rationale for Recommendation to Approve 12
<br /> September 29, 2016
<br /> send email notification if movement thresholds are exceeded. The stability evaluation for the highwalls
<br /> demonstrates high factors of safety, and the recommendations suggest elevated pore water pressures are
<br /> unlikely in a block rock mass. However, if groundwater is encountered at the highwall, the Operator will
<br /> consult geotechnical, mining, and groundwater experts to determine the best course of action, including a
<br /> determination regarding the installation of instrumented monitoring wells in the highwall. The application
<br /> demonstrates,through geotechnical and stability analyses, off-site areas will be protected with appropriate
<br /> factors of safety incorporated into the analysis, in accordance with the requirements of Rule 6.5(3) and
<br /> C.R.S. 34-32.5-116(4)(i).
<br /> Pursuant to Rule 6.4.19(b), Exhibit S includes an engineering evaluation prepared and certified by a
<br /> Colorado licensed professional engineer,that demonstrates to the Division's satisfaction that all structures
<br /> located within two hundred feet of the affected land, including Little Turkey Creek Road, shall not be
<br /> damaged by the proposed operation.
<br /> 3. Concerns regarding the portion of Little Turkey Creek Road located within and nearby the
<br /> boundaries of affected lands, as follows:
<br /> • Mine traffic within the easement of Little Turkey Creek Road would constitute a violation of
<br /> Colorado law
<br /> • Damage compensation agreements not attained with the easement holders for Little Turkey
<br /> Creek Road
<br /> • Potential for adverse impact to Little Turkey Creek Road from mine traffic
<br /> • Safety of travelers on Little Turkey Creek Road from mine traffic
<br /> (W. Baker, M. Baker, C Reed, N. Reed C Hancock, D. Hancock, R. Larsen, S. Larsen, M. Harvey, L. Harvey, J. Moore, K. Moore, M.
<br /> Henslee, M Cook, J. Lawrence, R. Cadigan, J. Cadigan, C Engelage, K. Blatchford, P. Blatchford, C. Kimble, C Bernstein, C Lick, D.
<br /> Lick, K. Kay, C. S.Kay, S. La Verne, C. Cook, T. Day, S. Pringle, M.Junck, R. Holden, Y. Holden, C. Newby, K. Newby, G. McCowen, M.
<br /> Spoor,D.Murphy,J.Murphy,B.Simmons,S.Simmons, B. Hughes,J.Kline)
<br /> The Colorado Land Reclamation Act for the Extraction of Construction Materials, C.R.S. § 34-32.5-101
<br /> et seq., provides the Division the statutory authority over quarry permit application such as M-2016-010.
<br /> However,the Act does not provide the Division with sufficient jurisdictional authority to interpret specific
<br /> conditions and rights of a private road easement contained within a District Court Decree. Unlike a State
<br /> District Court,the Division does not have the jurisdictional authority to adjudicate private property rights.
<br /> More specifically, the Division does not have jurisdictional authority to determine whether Transit Mix
<br /> Concrete Co.'s proposed application would violate the terms of the Little Turkey Creek Road easement
<br /> contained within a 1968 El Paso County District Court Decree in Civil Action No. 54701. The Decree
<br /> was the result of a legal proceeding between private parties. Issues regarding private property rights and
<br /> interpretation of the 1968 El Paso County District Court Decree should be brought before a Court with
<br /> proper adjudicative authority. In conclusion, without a Court's determination that the application is
<br /> contrary to a local permit or license, the Division does not have the statutory authority to deny the
<br /> Applicant's proposed mining operation. § 34-32.5-115(4) states that, "The Board or Office shall not deny
<br /> a permit except on one or more of the following grounds: (d) The proposed mining operation, the
<br /> reclamation program, or the proposed future use is contrary to the laws or regulations of this state or the
<br /> United States, including but not limited to all federal, state, and local permits, licenses, and approvals, as
<br /> applicable to the specific operation."
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