2008-06-18_REVISION - M1980244 (6)

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interest in the site responsible for the release of contaminants can be held strictly liable regardless of fault or intent," because "liability under CERCLA is joint and several, regardless of each party's degree of fault or responsibility . . That and the Colorado Mined Land Reclamation Act, Title 34 Colo. Rev. Stat., Article 32, make it perfectly clear that CC&V cannot expose Odin to liability without Odin's consent and an opportunity to assert its interest in these proceedings; nor can, it deprive Odin of its fair share of the income from its property necessary to compensate for damage done by the operator. See, for example, Hecla Mining Co. v. New Hampshire Insurance Co., 81'q P.2d 1083 (Colo. 1991). Furthermore Odin points out that the old law, on which CC&U relies, refers only to joint ownership of a "mine," and defines the word "mine'1 in Colo. Rev. Stat. ' 34-44-102, as including "all real property acquired, used, or chiefly valuable for mining purposes," and defining "tenants in common" as any "two or more persons" owning "any mine" as "common property." Colo. Rev. State. ' 34-44-103. Odin and CC&V do not own any mine as common property. Unless and until the joint property is itself mined, the proportionate shares of the net profits can be neither calculated nor distributed, and, of course, no costs incurred elsewhere than on the common property can be deducted from the gross returns eventually realized. See Morton v. Laesch, 52 Colo. 541, 125 Pac. 498 (1912), and People ex rel. Breene v. District Court, 27 Colo. 465, 62 Pac. 206 (1900), two cases from' before 1923 which plainly still apply to tenants in common of a property adjacent to other properties in which there is no tenancy in common. There is currently no arrangement or understanding whatsoever between CC&V and Odin for any of CC&V's past, present or future activities on Odin's 60% owned property. There is no cotenant mine that currently exists between CC&V and Odin, nor is there a cotenant mine proposed by CC&V in its application to the' Board. Consequently, CC&V's strained use of cotenant mining law for justifying its desire to mine property for which it has no legal authority to mine, fails from the start. It follows that no permit can be issued in this case unless and until there is agreement between Odin and CC&V as to joint operation of the property in which both are tenants in common with each other. Absent such agreement, Odin objects to destruction of its surface and subsurface estates, and to issuance of any permit to CC&V to mine the joint property absent consent by Odin to the reclamation plan. CC&V's basis for destroying Odin's entire property holding 3