PERMFILE100850

• Permit No: M1994011
• IBM Index Class Name: Permit File
• Doc Date: 12/29/1985
• Doc Name: DISTRICT COURT MONTROSE CNTY COLO CASE 95-CV-30
• Media Type: D
• Archive: No

. • t
materials from the sand and gravel operation itself. There was
no testimony [o indicate that any kind of mining operation is
being conducted in this area on these black sand deposits, and
the testimony indicated that such an operation would not be
feasible until Lhe price of gold reached 5500 per ounce. The
testimony indicated these black sand deposits were intertwined
with the sand and gravel, and while they may be carted off in the
sand and gravel material, the testimony does not indicate a
mining operation is either feasible or econumically practical at
this time.
Further, the Court has very serious misgivings about
the so-called sampling and testing procedures and the reliability
of the assay results. First of all, the samples were not col-
lected by the most reliable method, the trenching method; and
secondly, the method of collecting the samples is suspect. Some
of the material collected was from the washings which would
naturally have a higher concentration of black sand materials.
Secondly, the testing and sampling procedures used by Pene, in
particular, leaves much to question. The Court was nct riesented
with any scientific reliable methodology generally recognized by
experts in the field. In fact, Pene claimed a secret proprietary
kind of process that is not even subject to cross-examination or
testing. While reference was made to pamphlets and some materi-
als by the Colorado School of Mines, nothing was presented which
indicated the reliability of the sampling, testing and assaying
of these materials. In short, the Court did not find the evi-
dence relating to the collection of the samples, testing and
assaying to have sufficient indices of reliability and trustwor-
thiness to be accepted by the Court.
In summary, while it is undoubtedly true that some
black sand material is being hauled off with the sand and gravel,
the Court does not find that the Plaintiff/In[ervenors have
demonstrated a reasonable probability of success on the me ets tc
justify the issuance of a preliminary injunction prohibiting a
sand and gravel operation.
With respect to the Plaintiffs, the Court does not
grant a preliminary injunction in favor of Plaintiffs and against
Defendant Silver Hawk and Sutherland prohibiting the continuation
of the sand and gravel operation. As set forth above, the Court
has found as a matter of law that the Defendant is the owner of
the sand and gravel relating to the five placer mining claims.
Therefore, Plaintiffs have not demonstrated a reasonable proba-
bility of success on the merits. Even if reversed on appeal, it
is not irrevocably injured. Accurate books and records are being
maintain to determine the quantity of sand and gravel being
extracted, sold and delivered so that damages can be readily
ascertained.
in conclusion, [he Court finds and declares as a matter
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