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<br /> <br />incorrect position that the mineral estate has unlimited and ruirestrained use of the surface estate. <br />The May 27, 1997 letter sent on behalf of BLM Area Manager Cal Joyner, (provided at page 36- <br />37 of the application) incorrectly states that the mineral estate is "pazamount" in Colorado. The <br />Area Manager's error is amplified by the September 15, 1997, decision of the Colorado Supreme <br />Court. In this case, the court notes that historically the surface and mineral estates "must <br />exercise their rights in a manner consistent with the other." Ge ~ Oil & Gas Corooration v. <br />Mme, 26 Colo.Law. 207, 210 FN 8 (Colo 1997). <br />Even the narrowest readings of Magness cannot escape the Supreme Court's <br />interpretation of Colorado law that, <br />when the operations of a lessee or other holder of mineral rights would preclude or impair <br />uses by the surface owner, and when reasonable altematives aze available to the lessee, <br />the doctrine of reasonable surface use requires the lessee to adopt an altemative means. <br />The central issue in Magness was the relationship between surface and subsurface rights. This <br />relationship was addressed in numerous places and the Court clearly laid out the shifring <br />evidentiary burdens for determining whether the mineral owner has invaded the surface estate <br />and thus committed a trespass. Id., 212-213. At a minimum, compliance with the federal <br />procedural requirements, especially those that require examination and public disclosure of <br />reasonable altematives, must take place before the Stone's right to enter the surface can be <br />determined. <br />Even assuming that the proposal can comply with the substantive provisions of federal <br />law, it is quite likely that the process of complying with NEPA and the other procedural <br />requirements will reveal that there aze reasonable altematives that aze less damaging to the <br />neighboring private interests, publicly-owned surface estate and other publicly held resources. <br />Off-site processing at new or existing facilities is one example of a reasonable alternative. This <br />also points to the question of whether the applicant can properly gain federal permission to do <br />on-site processing of mined materials. <br />The proposed operation is in an Area of Critical Environmental Concern and therefore the <br />cultural sites require a Class III inventory, monitoring of alluvial areas, increased cultural <br />resource patrols, and evaluation to determine eligibility for National Register of Historical <br />Places. ACEC Plan Management Guidelines at 1-6. These requirements further support the <br />