2017-10-05_PERMIT FILE - M2017049 ‎(47)‎

• Permit No: M2017049
• IBM Index Class Name: Permit File
• Doc Date: 10/5/2017
• Doc Name Note: Volumes I through IV, Part 7 of 10
• Doc Name: Application
• From: Transit Mix Concrete Co.
• To: DRMS
• Permit Index Doc Type: Application Materials
• Email Name: AME
• Email Name: WHE
• Media Type: D
• Archive: No

(1) The Colorado Patent.
As noted in the Statement of Facts, the State of Colorado originally held both the surface and
mineral interests in the lands to be mined by Transit Mix.10 When the State granted the Marsh
Patent, the State of Colorado reserved to itself"all rights to any and all minerals, ore and metals of
every kind and character and all coal, asphaltum, oil and other like substances in or under said land,
and the right of ingress and egress for the purpose of mining together with enough of the surface of
same as may be necessary for the proper and convenient working of such minerals and
substance." 11 The Marsh Patent is subject only to those easement and rights of way in effect prior
to the issuance of the Patent in 1909. Thus, the Marsh Patent was specifically designed to assure
that when the State granted someone the right to develop the underlying mineral estate, that
developer would have the legal right to enter that surface estate and conduct mining operations.
(2) The State Lease.
The State Land Board, consistent with its duty to provide economic benefits to public schools and
public institutions of Colorado, leased"sand, gravel and crushed stone"to Transit Mix.12
The State Lease grants to Transit Mix the"right and privilege of exploring and prospecting for,
developing and mining of and taking of sand, gravel and crush stone minerals."The State Lease
specifically grants to Transit Mix the"right to use as much of the surface as may be reasonably
required, including the right to reasonable ingress and egress[and]the right to make excavations,
stock piles, and other improvements as may be reasonably necessary in the mining and removing of
said minerals." Most of the leased land is in the same section subject to the Marsh Patent. The
State Lease also includes land in Sections 21, 22 and 23 of T16S, R67W.
The reservation of surface uses in the Marsh Patent, coupled with the grant of surface use in the
State Lease is sufficient to establish the right of Transit Mix to enter the Hitch Rack Ranch and
conduct mining operations.
(b) The accommodation doctrine provides an independent basis for the legal right
of Transit Mix to enter and conduct mining operations
In addition to the express right to use the surface reserved in the Marsh Patent and granted in the
State Lease, Transit Mix also has the right to use the surface of the Hitch Rack Ranch under the
accommodation doctrine. Transit Mix holds a leasehold right to the mineral estate, and thus is in
and the Owners of Record of all land surface within 200 feet of the boundary of the affected lands."
An "Owner of Record" is an owner or the owners of a surface property interest shown in the records
of the County Assessor as of the date of filing." Construction Material Regulations, Rule 1.1(34). As
noted above, the Lease by itself is sufficient to establish the basis for the legal right to enter any
surface estate.
10 When Congress passed the General Land Ordinance of 1785, Congress allowed for Section
16 of each township to be conveyed to a newly recognized State"for the use of schools." See John
W.Andrews, State Trust Lands—Reconciling the Public Interest in Environmental Protection with
Trust Management Principles, 44 Rocky Mt. Min. L. Inst. 5 (1998). Thus, it is not surprising that
Section 16 was held by the State, and that the minerals remain under State control.
11 See Marsh Patent(emphasis added).
t2 See State Lease, Recitals.
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