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�. TransitMixConcrete <br /> Co. <br /> DRMS COMMENTS— PETER HAYS—REVIEW OF BLASTING PLAN and <br /> PRE-BLAST SURVEY PLAN <br /> 1. Item #41 of the Board Order signed by Jill Van Noord, Vice Chair on December 20, 2016, <br /> denying the previous permit application for the Hitch Rack Ranch Quarry, states the Applicant <br /> failed to meet its burden to show the application met the minimum requirements of the Act to <br /> show the source of legal right to enter and initiate a mining operation as set forth in Section 34- <br /> 32.5-112(1)(b)(IV), C.R.S to close Little Turkey Creek Road temporarily during mining <br /> (blasting) operations. In the current application, the proposed Blasting Plan for the site is again <br /> proposing to close Little Turkey Creek Road temporarily during blasting operations. <br /> Please demonstrate how the Applicant has met the minimum requirements of the Act to show the <br /> source of legal right to enter and initiate a mining operation as set forth in Section 3432.5- <br /> 112(l)(b)(IV), C.R.S. Item #43 of the Board Order states that the Board does not have <br /> jurisdiction to resolve the legal dispute over Little Turkey Creek Road and that "Without <br /> resolution of this issue, however, Applicant cannot meet its burden to demonstrate that is has <br /> obtained the legal right of entry to initiate a mining operation on Little Turkey Creek Road." <br /> How does the Applicant plan to meet its legal burden to prove that it has the legal right to close <br /> Little Turkey Creek Road for blasting? <br /> Response: Please refer to Exhibit N to the Permit Application. As discussed in Exhibit N, <br /> Transit Mix has a mineral lease from the State of Colorado, which gives Transit Mix the <br /> right to conduct mining operations on the Hitch Rack Ranch. Under the terms of the <br /> mineral lease and pursuant to the accommodation doctrine, Transit Mix has the right of <br /> reasonable use of the surface area of its mineral lease, and therefore has the legal right to <br /> close Little Turkey Creek Road for blasting, if necessary. As described elsewhere in this <br /> response, the revised Blasting Plan demonstrates that road closures will be exceedingly <br /> rare. <br /> More fundamentally, the question posed by Mr. Hays, and Applicant's response set forth <br /> above, is unrelated to the requirement that an Applicant describe the source of its legal <br /> right to enter and initiate a mining operation on Affected Land. Little Turkey Creek Road <br /> is not "Affected Land," and therefore falls outside the "legal right to enter" inquiry. <br /> "Affected Land" is defined as an area where the surface is disturbed as a result of a mining <br /> operation." C.R.S. § 34-32.5-103(i). The occasional closure of Little Turkey Creek Road <br /> will not disturb the road, and therefore Applicant is not required to show that it has the <br /> legal right to enter the roadway. <br /> Mr. Hays cites paragraph 41 of the Board Order in the previous permit application process <br /> as a foundation for his question. It is important to note that the prior Board Order does not <br /> apply to this application. This application is independent of the prior proceedings and <br /> presents a different set of facts for consideration. Also, Paragraph 41 rests on two mistakes <br /> of law. First, Paragraph 41 states that "the Board is required to determine whether the <br /> Application shows that the Applicant has obtained from all owners of record a legal right to <br /> enter and initiate a mining operation." The underlined portion of this sentence is contrary <br /> to the law. As noted above, and as set forth in Exhibit N to the permit application, the legal <br /> Hitch Rack Ranch Quarry(M-2017-049) <br /> Response to Comments—March 9,2018 <br />