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Mined Land Reclamation Board
<br />June 12, 2006
<br />Page 11
<br />inconsistent with those qualities and values, will detrimentally change the chazacter and appeal
<br />of the area, and will render future development unlikely.
<br />First, the expanded operation of the gravel pit will cause a substantial increase in noise.
<br />Likewise, the forecasted increase in truck (and other vehicular) traffic will inevitably result in
<br />increased dust, which will reduce visibility and impair the ability to enjoy the azea. In addition,
<br />from a recreational perspective, Toponas and the ranch lands see a constant flow of visitors and
<br />aze heavily used for recreational purposes, including horseback riding, hiking, hunting,
<br />snowmobiling, snowshoeing, cross-country skiing, and fishing. Shoemaker A>j<davit, at ¶ 9.
<br />Because agricultural values are limited i.e. under $1,000 per acre), recreational viability triples
<br />property values. However, that recreational viability will be lost among numerous gravel trucks,
<br />increased noise from the gravel pit, and the resulting dust in the air. Further, the hunting
<br />potential in the area is reflected in all property values. Indeed, on information and belief, one
<br />ranch in the azea generates $250,000 annually from wildlife hunting. If the wildlife population
<br />(primarily elk) is driven off by truck traffic from the expanded gravel pit, that revenue will be
<br />lost. For these reasons, a gravel pit expansion of the nature proposed by King Mountain will
<br />inevitably and adversely affect the aesthetics and recreational use of the ranch lands, and
<br />Toponas generally.
<br />£ Water Issues
<br />King Mountain owns the Morse Ditch water right, decreed for 1 cfs for irrigation uses,
<br />with an adjudication date of November 20, 1890 and an appropriation date of July 18, 1889.
<br />However, as that ditch is decreed for irrigation purposes only, King Mountain does not own a
<br />legal water supply to meet the needs of the proposed expanding mining operation or to mitigate
<br />its impacts. June 7, 2006 Letter from Porzak Browning & Bushong LLP, attached hereto as
<br />Exhibit G. In other words, King Mountain does not have any legal right to use the Morse Ditch,
<br />or any other water rights it purports to have, for industrial mining or dust suppression purposes.
<br />Id. Any water right that King Mountain may own cannot be used for its proposed expanded
<br />gravel operations until and unless it is changed by the Water Court. And even if the Water Court
<br />approves a change in place and type of use, and a change in the point of diversion, Colorado law
<br />does not permit a change in the time of use (which, historically, has been in the summer months
<br />only, not the entire mining season). Id. Accordingly, King Mountain's water rights, in any form,
<br />will never be available for use outside the historical irrigation season, and, therefore, will be
<br />inadequate for its requested use. Id.
<br />4. King Mountain's Prior Performance Should Also Be Considered.
<br />King Mountain's prior performance as a gravel pit operator in Routt County indicates
<br />that it is not reliable. For instance, King Mountain was using a "temporary pit entrance" as a
<br />long term entrance to the gravel pit, which is in an even more dangerous location than the former
<br />entrance. Shoemaker Affidavit at ¶10. Further, on information and believe, in the summer of
<br />2005, King Mountain's employees were "maintaining" the county road without the proper
<br />permits. Likewise, King Mountain has a history of difficulty maintaining fences and keeping its
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