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mcrZWED <br />JUN 2 9 2009 <br />DIN"* of Reci@M00", <br />BEFORE THE MINED LAND RECLANON Safety <br />S,Z F COLORADO <br />3??a art <br />p??;??????N THE MATTER OF ZELLITTI SAND AND GRAVEL PIT, APPLICATION FOR 122c <br />PERMIT AMENDMENT, File No. M-1980-246 <br />OPERATOR HOCKER CONSTRUCTION, LLP's RESPONSE CONCURRING WITH <br />THE DIVISION OF RECLAMATION, MINING AND SAFETY'S BRIEF ON LEGAL <br />ISSUES AND AGRUMENTS RELATED TO THE ZELLITTI PIT ADMENDMENT <br />APPLICATION, <br />AND <br />OPERATOR HOCKER CONSTRUCTION, LLP's RESPONSE IN OPPOSITION TO <br />ZELLITTI PROPERTIES' MOTION TO DENY THE APPLICATION FOR EXPANSION <br />OF THE ZELLITTI PIT <br />COMES NOW, Hocker Construction, LLP ("Hockey") and files this response <br />concurring with the Brief on Legal Issues and Arguments filed by the Division of <br />Reclamation, Mining and Safety ("Division") related to the Zellitti Pit Amendment <br />Application ("Division's Brief') and in opposition to the Motion to Deny Application for <br />Expansion of the Zellitti Pit ("ZP's Motion") filed by Objector Zellitti Properties. <br />A. Concurrence with the Division's Brief. <br />Hocker, as the operator of the current Zellitti Pit and operator of the proposed <br />amended pit, agrees with the facts, analysis and legal positions taken by the Division <br />and, for this reason, incorporates by reference the Division's Brief in its entirety. <br />Hocker supplements the Division's Brief with respect to one issue, that issue <br />being ZP's position that the mineral reservation contained in the 1991 deed conveying <br />real property to Barry and Martha Zellitti was intended to reserve "sand and gravel <br />rights" as part of the mineral estate. With respect to this issue, Hocker supplements the <br />Division's Brief as follows: <br />1. The Division correctly explains that only Anthony and Marilyn Zellitti's <br />permission is needed to mine the sand and gravel from the proposed amended pit area, <br />also known as the Home Property, even if the sand and gravel were considered a <br />mineral'. See Division's Brief, p.4, first full paragraph. Although, Hocker agrees with the <br />Division's analysis if the sand and gravel were considered part of the mineral estate, <br />'As stated in the Division's Brief, Anthony and Marilyn Zellitti own 75% of the mineral estate and ZP owns <br />25% of the mineral estate.