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refuse banks or spoil piles; evaporation or settling ponds; work, parking, storage, or waste <br /> discharge areas; and areas in which structures, facilities, equipment, machines, tools, or <br /> other materials or property that result from or are used in such operations are situated. <br /> "Affected land"does not include land that has been reclaimed pursuant to an approved plan <br /> or otherwise, as may be approved by the board, or off-site roads that were constructed for <br /> purposes unrelated to the proposed operation, were in existence before a permit application <br /> was filed with the office, and will not be substantially upgraded to support the operation or <br /> off-site groundwater monitoring wells.18 <br /> The definition of"Affected Land" in the Construction Material Regulation differs slightly from the <br /> statutory definition, but not in a manner that affects this analysis.19 <br /> In the prior permit application for a larger version of the Hitch Ranch Ranch Quarry, Transit Mix <br /> planned to cross Little Turkey Creek Road to conduct mining north of Little Turkey Creek Road, and <br /> to straighten a small portion of the road. In this revised permit, all mining will be conducted south of <br /> Little Turkey Creek Road, and thus Little Turkey Creek Road will be entirely outside the area where <br /> "a mining operation ... will be conducted, which surface is disturbed as a result of an operation." <br /> The Little Turkey Creek Road existed prior to the filing of this permit application, and thus the road <br /> falls within the statutory exclusion of pre-existing roads from the definition of"affected land." Little <br /> Turkey Creek Road (i) is an"offsite road", (ii)was constructed for purposes unrelated to the <br /> proposed mining operations, and (iii)will not be upgraded at all to support either mining operations <br /> or groundwater monitoring.20 Because the Little Turkey Creek Road is not"Affected Land,"the <br /> Construction Material Act does not require any information concerning the"legal right to enter" Little <br /> Turkey Creek Road or the road easement. The statutory exclusion of the Little Turkey Creek Road <br /> from the area subject to the"legal right to enter" inquiry establishes that the road easement is <br /> irrelevant to the permitting process. <br /> (b) The easement for Little Turkey Creek Road is not the"dominant estate" in <br /> relation to the mineral interest held by Transit Mix. <br /> The Board Order characterizes the easement for the Little Turkey Creek Road as the"dominant <br /> estate."21 That characterization is not accurate in relation to the mineral estate. It is true that"[t]he <br /> property burdened by the easement is customarily known as the'servient estate'while the property <br /> benefited by the easement is called the'dominant estate."' 22 It is important not be misled by the <br /> word "dominant." The estate that is burdened by the easement is the surface estate, not the mineral <br /> estate. The road easement is a surface interest, and like other surface interests, it is servient to the <br /> dominant mineral estate, as well as the surface access rights reserved in the Marsh Patent. <br /> As noted above, the characterization of the surface and mineral interests as"dominant"and <br /> "servient" is archaic, and has been supplanted in Colorado by a recognition that the various estate <br /> holders must accommodate their respective uses of their property interests. Thus, the prior analysis <br /> of the legal right to enter rested on two related errors. First, the analysis presumed that the <br /> easement holders held a real property interest that was"dominant,"and therefore could serve as an <br /> 18 Colo. Rev. Stat. § 34-32.5-103(i). <br /> 19 See Const. Materials Regulations, Rule 1.1(3). <br /> 20 See Colo. Rev. Stat. 34-32.5-103(i). <br /> 21 See Board Order, §§41-43. <br /> 22 Lazy Dog Ranch v. Tellurav Ranch Corp., 965 P.2d 1229, 1234 (Colo. 1998). <br /> 6 <br />