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

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fact the holder of the dominant real property interest. "The mineral estate has traditionally been held to be dominant over the surface estate, with a broad array of rights implied by law to the owner of the mineral estate.i13 In a case (like this one)where the lease came for the State Land Board, the Colorado Court of Appeals, in Gerrity Oil and Gas Corp. vs. Magress, noted that the "[m]ineral estate owners have an implied easement, which burdens the surface interest and empowers mineral owners to make reasonable use of the surface is order to access the minerals below."14 The characterization of the mineral estate as dominant has evolved over time. Under Colorado law, the owner of a mineral interest has an implied easement to use the surface of lands over its mineral estate.15 The Gerrity court recognized that the characterization of the mineral estate as dominant or the surface estate as servient is a bit archaic: "Although we have referred to the mineral estate as the dominant estate and the surface estate as the servient estate, our cases have consistently emphasized that both estates must exercise their rights in a manner consistent with the other. Hence, in a practical sense, both estates are mutually dominant and mutually servient because each is burdened with the rights of the other.i16 Indeed, "the law in Colorado has begun to recognize that the competing uses between two interest owners should be accommodated if possible, and the inflexible notions of dominant and servient estates do little to advance that accommodation." 17 While the conceptual framework of"dominant" and "servient"estates is less rigorous today, it is clear that the accommodation doctrine recognizes the absolute right of Transit Mix to make reasonable use of the entire surface estate to extract minerals. Part II—The Little Turkey Creek Road easement is irrelevant to the right of Transit Mix to enter the Hitch Rack Ranch and conduct mining operations. (a) Little Turkey Creek Road is not"affected land" under this permit application, and therefore does not affect the "legal right to enter" requirement. Little Turkey Creek Road is not"Affected Land"as defined in the Construction Materials Act and the Regulations. Indeed Little Turkey Creek Road falls within an exception to the definition of"Affected Land"specifically applicable to the road under the current configuration of the Hitch Rack Ranch Quarry. The Construction Materials Act defines"Affected Land"as follows: "Affected land"means the surface of an area within the state where a mining operation is being or will be conducted, which surface is disturbed as a result of an operation. Affected lands include, but shall not be limited to, private ways, roads(except those roads excluded by this subsection (1)); land excavations; exploration sites; drill sites or workings; 13 Am. L. Mining 2d§200.2(b)(i) (2017). 14 Chase v. Colorado Oil and Gas Conservation Comm'n, 284 P.3d 161, 170 n. 17 (Colo.App. 2012). 15 See, etc., Gerrity Oil and Gas Corp. v. Magness, 946 P.3d 913, 927 (Colo. 1997). 16 Gerrity, 946 P.2d at 927 n. 8. 17 Roaring Fork Club L.P. v. St. Jude's Company, 36 P.3d 1229, 1234-35 (Colo. 2001). 5