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Murray and one from John Byron Fish and Hilda Fish. However, the current surface owners of the
<br />parcel of land for which the two mineral owner warranty deeds apply IW 3/4 E 1/2 NW 1/4 and SW
<br />1 /4 NW 1 /4 of Section 1 , T35N, R14W, N.M.P.M.), George Mike and Shirley L. Young, have indicated
<br />in correspondence and a recent affidavit provided to the Division that sand & gravel resources are part
<br />of the surface estate, not the mineral estate. As such, Betty L. Murray and John Byron and Hilda Fish
<br />may not have had an ownership interest in gravel to convey to the applicant in their warranty deeds.
<br />Exhibit P of the application contains a copy of an "OIL, GAS AND MINERALS LEASE" executed
<br />between Marcheta Newholm and Stephen H. Kinney. However, the surface owner of the parcel of
<br />land subject to the lease, Mr. Dean E. Wolcott, has indicated in correspondence to the Division dated
<br />December 1, 1994 that sand and gravel are part of the surface estate, not the mineral estate. Mr.
<br />Wolcott also indicated that the description of substances contained in the Newholm Lease was
<br />significantly expanded from the description of substances contained in both the original Dunsmoor
<br />mineral reservation deed made in 1957, and in a subsequent mineral reservation deed made by J.P.
<br />and Lizzie Young in 1972, and that at the time those reservations were made, none of the parties
<br />contemplated that the term "oil, gas and other minerals" meant a reservation of the sand and gravel.
<br />As such, Marcheta Newholm may not have had an ownership interest in gravel to convey to the
<br />applicant in her Lease with Mr. Kinney, and John Byron and Hilda Fish may not have had an ownership
<br />interest in gravel to convey to the applicant in their warranty deed.
<br />Exhibit P of the application includes a quotation stating that "gravel is a mineral within the vernacular
<br />of the mining industry in the State of Colorado". However, no specific citation for the quote was
<br />included in the application, and the quote does not appear to have any bearing on gravel ownership
<br />issues. The two other mineral definitions quoted in Exhibit P also do not appear to have any bearing
<br />on the issue of gravel ownership. The definition of mineral contained in Section 34-32-103 (7) of the
<br />Colorado Mined Land Reclamation Act is only partially quoted in Exhibit P, and appears to have been
<br />taken out of context. The full definition contained in the current version of the Act states that
<br />"Mineral" means an inanimate constituent of the earth in a solid, liquid, or gaseous state which, when
<br />extracted from the earth, is useable in its natural form or is capable of conversion into a useable form
<br />as a metal, a metallic compound, a chemical, an energy source, or a raw material for manufacturing
<br />or construction material. For the purposes of this Article, this definition does not include coal, surface
<br />or subsurface water, geothermal resources, or natural oil and gas together with other chemicals
<br />recovered therewith, but does include oil shale". This is a jurisdictional definition applicable only to
<br />issues related to enforcement of the Colorado Mined Land Reclamation Act and has no bearing on the
<br />issue of gravel ownership. Please note that this definition soecifically excludes substances such as
<br />coal, oil and gas that are in most, if not all cases, considered to be part of the mineral estate. It is
<br />essential that the purpose and function of jurisdictional definitions of minerals not be confused with
<br />the issue of whether ownership of a particular substance within a specific parcel of land is part of the
<br />mineral estate or the surface estate.
<br />Please be aware that applications for the extraction of construction materials such as sand and gravel
<br />are no longer under the jurisdiction of the Colorado Mined Land Reclamation Act. Applications for
<br />construction material extraction operations, including the Orion Pit Application, are currently under the
<br />jurisdiction of the Colorado Land Reclamation Act for the Extraction of Construction Materials, C.R.S.
<br />34-32.5-101 et sea• Please be aware that this Act contains no definition of the term "mineral" in the
<br />definitions section. However, the term "Construction Material" is defined under Section 34-32.5 103
<br />(3) of the Act as "rock, clay, silt, sand, gravel, limestone, dimension stone, marble, or shale extracted
<br />for use in the production of nonmetallic construction products". It should be pointed out that since
<br />clay, silt, and sand form the primary constituents of topsoil and subsoil, the extraction of both topsoil
<br />and subsoil materials falls within the jurisdiction of the Construction Materials Act.
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