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the silica sand and gravel and still avoid the gold-bearing sand <br />and gemstones? If the Division allows Neilsons, Inc. to mine sand, <br />gravel and sub-soil earth fill material, they will also mine gold <br />and gemstones at the same time. In that case, the Division will <br />have inversely condemned the gold and gemstones for a public use <br />(i.e. to use as ordinary gravel on highway projects, etc.) without <br />any compensation to Stephen Kinney (or to the Youngs). That is <br />contrary to the taking clause of the US Constitution. <br />Neilsons, Inc. and the Youngs have voluntarily given the legal <br />interpretation of its lease to the courts by filing the case of <br />Neilsons, inc. et al v. Kinney. et al., Montezuma County District <br />Court, Case 97 CV 90. Since the Division has no legal right to <br />determine the actual ownership of each mineral substance to be <br />mined, the Divisicn must wait the outcome of this litigation. <br />The Colorado State Land Board has consistently argued that the sand <br />and gravel belong to the mineral owner. The State Land Board took <br />that position in the CEDAR POINT PIT, Permit #M-94-108, and forced <br />the surface owner, Noland, Inc., to enter into their Sand and <br />Gravel Lease (No. GL 3261). The Division acquiesced to the State <br />Land Board's point of view, but took a contrary position in the <br />MARS PIT application and ORION PIT application. According to the <br />Division, who does the sand and gravel belong to: the mineral owner <br />or the surface owner? <br />Sinc~y, p// <br />ai7,... <br />Charles G. Kinney <br />CGK/rr <br />cc: Client <br />Co-Counsel <br />00217 <br />