PERMFILE110258

• Permit No: M2005080
• IBM Index Class Name: Permit File
• Doc Date: 9/5/2006
• Doc Name: Response to Objectors Motion to Dismiss
• From: DRMS dab
• To: MLRB
• Media Type: D
• Archive: No

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STATE OF COLORADO
.~ DIVISION OF RECLAMATION, MINING AND SAFETY
Department of Natural Resources
1313 Sherman St., Room 215
Denver, Colorado 80203
Phone: [phone]
FAX: (303) 832$106
i/September 5, 2006
-~o Mined Land Reclamation Boazd
c/o Tyson Powell
Assistant Attorney General
Colorado Attorney General's Office
1525 Sherman Street, 5th Floor
Denver, CO 50203
1/
RE: Case No. M-2005-080; Allen Drilling and Excavating Company; Division of
Reclamation, Mining and Safety's Response to Objectors' Motion to Dismiss
Deaz Board Members:
COLORADO
DIVISION OF
RECLAMATION
M[NING
- &-
SAFETY
Bill Owens
Governor
Russell George
Executive Director
Ronald W. Canany
Division Direcor
Natural Resource Trustee
The Division of Reclamation, Mining and Safety (the "Division") as staff to the Mined Land
Reclamation Boazd ("Boazd") submits this Response to the Objectors' Motion to Dismiss
received by the Division on September 1, 2006.
The basis of the Objectors' Motion is that certain parties have filed a quiet title lawsuit in Pazk
County district court. The property subject to the lawsuit includes the property Allen Drilling
and Excavating Company ("the Applicant") proposes to mine for sand and gravel. The
Objectors assert that the Boazd cannot determine the Applicant's legal right to enter and initiate
the proposed mining operation until the court rules in the quiet title action.
After learning of the lawsuit, the Division requested that the Applicant explain the effect, if any,
the lawsuit has on its legal right to enter. In response, the Applicant submitted a legal opinion
from its attorney which concluded that the lawsuit had no effect on the Applicant's legal right to
enter. The legal opinion asserts that even if the lawsuit were successful, the result would be that
the Applicant and any entities other than the Applicant that have a right to the sand and gravel
would hold such rights as co-tenants with the Applicant. As such, under statutory provisions,
each co-tenant would have a right to mine the property even without consent of the other co-
tenants but subject to an accounting of the net profits from the mining operation. § 34-44-103,
C.R.S.
Under § 34-32.5-112(1)(c)(IV), C.R.S. and Rule 6.4.14, 2 CCR 407-4, an applicant must show
its legal right to enter and initiate the proposed mining operation. In the Allen Drilling matter,
the Division has reviewed the documentation submitted by the Applicant and the Objectors. The
Applicant submitted a deed that shows it owns the surface estate and one-half of the mineral
estate. If the parties to the quiet title action can successfully establish that they own the other
half of the mineral estate and that the mineral estate includes the sand and gravel, at best these
Office of Office of
Mined Land Reclamation Active and Inactive Mines