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purposes, and Aggregate Industries' use of its property for mining therefore takes subject to and <br /> is subordinate the rights of FMIC for its historical ditch easement. <br /> III. Basis of the Complaint <br /> The mining operations by Aggregate Industries adjacent to the FMIC Ditch easement, <br /> and erosion from those mining operations, have left a very steep slope that seriously threatens to <br /> impair the structural integrity of the FMIC Ditch and its historical pre-existing easement <br /> rights. On at least two occasions Aggregate Industries has had to employ temporary measures <br /> and dump fill dirt into steep gullies to keep the erosion from continuing to advance towards the <br /> FMIC Ditch and access road. Demands by FMIC for Aggregate Industries to provide a lasting <br /> solution to the erosion threat to FMIC have been ignored. Attached are a series of pictures taken <br /> on July 15, 2019 that demonstrate the steep eroded banks towards the FMIC Ditch. <br /> The slopes near the FMIC Ditch along significant portions of the Aggregate Industries' <br /> permit property are at this point less that a 1:1 slope. If matters continue on their present course, <br /> the continued erosion and undercutting towards the FMIC Ditch easement could destroy the <br /> integrity the FMIC Ditch and the operations of the FMIC at great peril and damage to FMIC and <br /> its shareholders. Aggregate Industries owes a duty to FMIC to not cause a trespass upon the <br /> FMIC Ditch easement from its mining operations and resulting erosion, as well as a duty to <br /> protect and not impair the lateral and adjacent support to the pre-existing FMIC Ditch easement. <br /> Attached is the October 21, 2019 letter from Transit Mix, successor to Aggregate <br /> Industries under the same permit, to FMIC which states the following commitment for a properly <br /> graded slope from mining to the FMIC Ditch; <br /> TM will meet the Division of Reclamation Mining and Safety's requirement at final <br /> reclamation, which will require re-sloping and planting of slopes to an approximate 3:1 <br /> grade. As such, there will be no steep slopes that would result in erosion or other <br /> damages to the Fountain Mutual Ditch. <br /> These agreed upon remediation efforts need to be taken now by Aggregate Industries and <br /> not upon final reclamation, as the side slopes left my mining operations and erosion are currently <br /> presenting a danger to FMIC. <br /> The proposed Compensation Agreement tendered to FMIC by Aggregate Industries, copy <br /> attached, states that the FMIC Ditch will not be impacted by mining and states that FMIC will be <br /> compensated for any damage to the FMIC Ditch. This Agreement was not signed by FMIC <br /> because impact to the FMIC Ditch was already imminent and Aggregate Industries has refused to <br /> respond to FMIC to detail the work that would be done at this time to provide a proper 3:1 slope <br /> from the ditch easement. <br /> 1 Pictures 5054 and 5060 have been included for the purposes of showing the extent of what is likely groundwater <br /> that has been intercepted by mining operations that is causing un-replaced out-of-priority depletions to Fountain <br /> Creek and injury to senior water rights. <br />