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Mulliken Weiner Berg &' Jolivet P.L. <br /> Ms. Amy Eschberger <br /> December 19, 2017 <br /> Page 5 <br /> Application, is whether the proposed mining will violate private property rights held by the <br /> property owners who are benefitted by the existing easement over Little Turkey Creek Road <br /> established by a 1968 court decree. The Second Application indicates that notwithstanding the <br /> new boundaries of the mine, Little Turkey Creek Road will need to be closed periodically, at <br /> least during blasting. The objectors benefitted by that easement have persuasively argued that <br /> closure of the road would violate the terms of the recorded easement. The terms and restrictions <br /> imposed by the recorded easement are clearly binding on the land owner, and are equally binding <br /> on Transit Mix which takes its rights through and under the property owner. During the <br /> processing of the First Application, the Board expressed serious concern with this easement <br /> issue. Scott Schultz, the Assistant Attorney General who is counsel for CDRMS, acknowledged <br /> that CDRMS lacked any jurisdiction to resolve the issue and requested that the Board condition <br /> any approval on the applicant either getting an agreement with the owners benefitted by the <br /> easement or obtaining a declaratory judgment from a court which resolved this issue. Over a <br /> year later, Transit Mix has neither obtained that agreement from the benefitted owners nor filed a <br /> declaratory judgment action with a court to resolve this issue. CDRMS should require one or the <br /> other as a prerequisite to processing the Second Application. To not impose that requirement is <br /> to accept an incomplete application, waste staff time and resources, and require the objectors to <br /> expend substantial further time and incur more expense. <br /> Conclusion <br /> The Trust objects to the Second Application and urges you to deny it. The proposed <br /> mining site is adjacent to areas previously recognized for their special environmental <br /> characteristics which have already been designated for preservation. The proposed mining area <br /> itself holds those same ecological characteristics, including abundant wildlife and critical <br /> wildlife habitat, and should be similarly treated and protected, a fact formally recognized by El <br /> Paso County. The area should not be mined with the predictable adverse impact on the <br /> surrounding areas and its numerous residents. The proposed mining would (i) adversely impact <br /> the hydrologic balance, likely permanently injuring wells in the area, and (ii) adversely and <br /> unacceptably impact wildlife in the area. The proposed mining would also have an adverse <br /> impact on the adjoining Ingersoll Ranch, and be destructive to Mr. Ingersoll's plan for the <br /> perpetual conservation of the Ingersoll Ranch, a plan which is now irrevocably set forth in Mr. <br /> Ingersoll's Trust. <br /> Although the Trust was an objector to the First Application and a current litigant, the <br /> Trust was not provided written notice of the Second Application, and reserves the right to <br /> supplement this response. <br /> The Board and CDRMS were very considerate when processing the First Application to <br /> hold the meetings and hearings in Colorado Springs. Due to the large number of objectors to this <br /> Second Application, we would respectfully request that all meetings and hearings on the Second <br /> Application again be scheduled in Colorado Springs. <br />