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under Colorado case law, most recently set forth in United States v. Hess, 348 F.3d <br />1237 (10th Cir. 2003), a reservation of mineral interests generally does not include within <br />it a reservation of the sand and gravel located on or under the property. <br />This general rule may be overcome upon a court finding that the parties to the <br />deed nevertheless intended for the word "mineral," as used in the reservation, to include <br />a reservation of sand and gravel; however ZP's Motion puts forth no evidence in this <br />regard. The arguments in ZP's Motion and reference to statements made by the <br />Division's attorney are not evidence and do not establish intent of the parties to that <br />transaction. Such evidence may only come from Barry and Martha Zellitti and Louis <br />Zellitti, the former general partner of ZP who is deceased, and from the attorneys <br />retained by ZP and Barry and Martha Zellitti that prepared and reviewed the 1991 deed <br />of conveyance. ZP offers no such evidence. <br />2. Most important, as of the date this document has been prepared, ZP has <br />never filed such a claim in any court action and has never raised this issue in the <br />pending litigation filed in La Plata County State District Court. Such a claim would have <br />to be filed against Barry and Martha Zellitti, and, to date, no such claim has been filed. <br />In light of the applicable Colorado statute of limitations, such a claim may also be barred <br />due to the passage of approximately eighteen (18) years since the 1991 deed. <br />Regardless, such a claim should be determined by a .Colorado State District Court and <br />there is no reason to delay approval of the Pit Amendment, or to place any condition on <br />approval based upon what a Colorado Court may, or may not, decide when and if ZP <br />brings such a claim against Barry and Martha Zellitti. <br />B. Additional Opposition to ZP's Motion. <br />The Division's Brief responds directly to the arguments and objections raised in <br />ZP's Motion. As stated above, Hocker concurs with the legal positions taken by the <br />Division. In addition, Hocker states: <br />ZP's argument regard ng legal right of entry to the proposed expansion area is <br />not supported by the facts or Colorado law. <br />Sections 2 and 3 of the Division's Brief correctly explains that the Construction <br />Materials Act ("Act"), the Construction Material Rules ("Rules"). and longstanding <br />Colorado law do not require the consent of all tenants-in-common in order to have a <br />legal right of entry to mine sand and gravel. Specifically, and in direct contradiction to <br />ZP's Motion, Section 3 of the Division's Brief details Hocker's right of access to the <br />amended pit property and the fact that a new access road to the pit amendment area <br />will not cross property upon which ZP has a surface interest. Notably, ZP provides no <br />support for its statement that "it has long been the Divisions Policy" that all tenants-in- <br />common must agree to access to support an application for a permit or permit <br />amendment. Moreover, should ZP seek to offer "expert" testimony on what the <br />Division's policy has been or should be, such testimony should not be permitted, as <br />determination of the Division's policy is strictly within the purview of the Board. <br />2