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right-of entry there must be no mining or reclamation activity by the operator on the <br />affected lands." <br />Zellitti Properties' cited legal authority shows that the minority land owner has <br />authority to evict from the property any person in the world except the tenant in <br />common. Thus, regardless of Anthony Zellitti's authorizing the Operator to be on the <br />lands; Hocker, the Operator must have permission of all surface owners of lands in the <br />pit for the life of the pit. Expansions should not be granted where permission for access <br />to the original permitted pit has been lost. <br />II. Hocker argues that the issue of a claim of Zellitti Properties for the rights to sand gravel <br />royalties from the proposed expansion property are not valid for a variety of reasons as <br />follows: <br />1. The Claim of Zellitti Properties to or for royalties for sand and gravel mined on the <br />Home Property also known as the "Barry" Property (the expansion area involved herein) has <br />been filed in Court and is currently pending in La Plata County District Court. (See Amended <br />complaint attached hereto, Zellitti Properties versus Hocker Construction, L.L.C., Anthony and <br />Marilynn Zellitti, Counts II and III, which claims 25% royalty for mining on the "Barry" Property, <br />a/k/a "Home" Property'. As is acknowledged by the applicants, and by Hocker, Hocker has <br />been the operator on the existing pit which is now the subject of an application f or an <br />expansion onto the "Home" Property. Hocker pays all royalties to Anthony Zellitti, the permit <br />holder. Anthony Zellitti then pays the minority tenant in common. There fore, all royalties paid <br />for mining on the expansion property are paid to Anthony Zellitti and Anthony Zellitti, in turn, is <br />liable to the minority tenant in common for such past royalties due. Any money paid <br />wrongfully to Barry Zellitti is Hocker or Anthony Zellitti is responsibility for failure to pay the <br />proper owner of the 25% interest, not Barry. Barry is merely receiving a windfall if in fact he is <br />receiving such payments. Therefore, it is clear that this issue is pending in court presently <br />contrary to the assertion of Hocker. <br />2. Hocker claims that the issue of whether a reservation of all mineral rights by Zellitti <br />Properties in a deed to Barry and his wife in 1991 are barred by the 18 year statue of <br />limitations. This is clearly false. No mining of sand and gravel on the Home Property a/k/a the <br />Barry property which is the subject of the 19991 deed occurred until 2008. There was no claim <br />for failure to pay royalties until mining of sand and gravel actually began. Zellitti Properties had <br />no claim prior to that date and no reason to sue and therefore no statute of limitations began <br />until that time. <br />3. Hocker claims there is not proof of the intent of Barry Zellitti and Zellitti Properties to <br />reserve sand and gravel rights to Zellitti Properties by the reservation of mineral rights in the <br />general reservation of mineral rights in the 1991 deed from Zellitti Properties to Barry and <br />Martha Zellitti. Hocker has the cart before the horse here. Proof is a matter to be offered at the <br />hearing currently scheduled in this matter for July 8t", 2009. This is one of the purposes of the <br />hearing and why Zellitti Properties argues this is an issue that the Board should hear proof.