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PERMFILE117244
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PERMFILE117244
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Last modified
8/24/2016 10:13:01 PM
Creation date
11/25/2007 3:26:23 AM
Metadata
Fields
Template:
DRMS Permit Index
Permit No
M2005080
IBM Index Class Name
Permit File
Doc Date
6/19/2006
Doc Name
Motion to Strike Certain Testimony of Objectors
From
Temkin Wielga Hardt & Longenecker LLPq
To
DMG
Media Type
D
Archive
No
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R, <br />should not be allowed to testify. Additionally, the testimony of Mr. Wisely should be stricken to <br />the extent it deals with mineral rights on the Applicant's property. <br />2a. The question of the ownership of any potential mineral rights on Allen's <br />property was first raised after the close of the comment period on March 23, 2005 and is, <br />therefore, not timely. See Rule 1.7.1(2)(a). As untimely commentary to the administrative <br />permit process, the Board should not consider the issue of ownership in any minerals on Allen's <br />property, and should disallow any testimony on those matters. <br />2b. Even if the ownership question was timely raised, it is beyond the <br />jurisdiction of the Board, and cannot form [he basis for denial of the application. As such, any <br />testimony regarding ownership is irrelevant to the Board's consideration of Allen's permit <br />application, and should be stricken. Neither the Rules nor the Land Reclamation Act for the <br />Extraction of Construction Materials, C.R.S. § 34-32.5-101 et seq. ("the Act"), allow the Board <br />or the Division to decide ownership disputes, or to deny a permit based upon an ownership <br />dispute. See C.R.S. § 34-32.5-115(4) (setting forth the exclusive grounds upon which the Board <br />may deny a permit). Moreover, as [he Colorado Court of Appeals has held, the Mined Land <br />Reclamation Act, C.R.S. § 13-34-32-101 eC seq., which establishes the Board and delineates its <br />duties and powers, does not "purport[] to grant the Reclamation Board jurisdiction to construe <br />deeds or to determine ownership of mineral estates. Such legal matters lie exclusively within the <br />province of the courts." O'Connor v. Rolfes, 899 P.2d 227, 229 (Colo. App. 1995). Thus, any <br />testimony by Mr. O'Dell or Mr. Wisely regarding ownership of any potential mineral estate on <br />Allen's property constitutes testimony on matters outside the Board's jurisdiction. As such, [he <br />testimony is irrelevant and should not be allowed. <br />2c. Additionally, as an attorney practicing law in Colorado who would opine <br />on the ultimate legal conclusion to be reached in this case, Mr. O'Dell's testimony is improper. <br />Where an attorney testifies as an expert witness, the Colorado courts have drawn a distinction <br />between testimony explaining what the law is and testimony applying the law to come to an <br />ultimate legal conclusion. See Grogan v. Taylor, 877 P.2d 1374, 1384 (Colo. App. 1994), <br />overruled on other grounds by Taylor v. Grogan, 900 P.2d 60 (Colo. 1995). Where an attorney <br />testifies before a district court as to the correct legal conclusion to be drawn in a given instance, <br />the attorney has "improperly invaded the province of the trial court as the giver of law." Id. at <br />1384. Phrased more succinctly, "an expert testifying as to issues of law may not ...simply tell <br />the jury what result to reach." People v. Leslie, 939 P.2d 443, 450 (Colo. App. 1997). As one <br />court explained when rejecting the testimony of an attorney in a quiet title action, "the <br />fundamental problem with testimony containing a legal conclusion is that conveying the witness' <br />unexpressed, and perhaps erroneous, legal standards to the jury amounts to a usurpation of the <br />court's responsibility to determine the applicable law and to instruct the jury as to that law." <br />Create 21 Chuo, Inc. v. Southwest Slopes, Inc., 918 P.2d 1128, 1178 n.4 (Haw. App. 1996). <br />Since Mr. O'Dell would purportedly offer a legal conclusion as to mineral ownership, his <br />testimony would be improper and should not be allowed. <br />WHEREFORE, the Applicant respectfully requests that the Board strike Chris O'Dell <br />from the Objectors' witness list and disallow all testimony from Mr. O'Dell. <br />
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