2009-06-23_REVISION - M1980246

• Permit No: M1980246
• IBM Index Class Name: REVISION
• Doc Date: 6/23/2009
• Doc Name: Zellitti Properties Motion
• From: Charles C Powers, Esq.
• To: DRMS
• Type & Sequence: AM2
• Email Name: KAP
• Media Type: D
• Archive: No

To: The Division of Reclamation Mining and Safety
1313 Sherman Street JUN 2 9 2009
Denver, Colorado
Dhfti" of Reclametiow

From: Charles C. Powers, Esq. ,
MIAM9 and Safety
Attorney for Zellitti Properties RECEIvrll'
P. O. Box 1273 JUN Z 3 2(lO9
South Fork, Colorado
1-719-873-1740 Division at Rec4arnanon,
Mining and Safety
Re: Application of Anthony and Barry Zellitti for Expansion of the Zellitti Pit, Durango,
Colorado
M-1980-246
Date: June 23, 2009
Comes Now Zellitti Properties and submits this motion to deny the Application for
Expansion of the Zellitti Pit onto neighboring property in which Zellitti Properties is not a
surface owner and submits the following factual and legal arguments and Moves that the
following issues be considered by the Division Board:
1. Issue: All property owners must agree to access to all of the permitted pit not just the
expansion area.
The Division has found and agrees that the Applicant, Anthony Zellitti, along with his
wife Marilyn, are the 75% tenant in common owner and Zellitti Properties is 25% tenant in
common owner in the property that is included in the original Zellitti pit consisting of
approximately 35 acres. The division further agrees that the permit holder is Anthony Zellitti
and that Anthony Zellilitti has applied without the consent of Zellitti Properties for a 25 acre
expansion of the existing pit onto neighboring property in which Zellitti Properties is not a
surface owner but reserved the "mineral" rights tot hat property. The Division also agrees and
the file reflects that, although Anthony Zellitti is the Permittee, he is not the Operator.
The Division has acknowledged'that he actual Operator is Hocker Construction, L.L.C.
and the Division agrees that, in order to mine the pit including the expansion, Hocker
Construction must have access. Because of this, the division has designated Hocker
Construction is an interested party in this matter and in deed a necessary party to this matter;
and, as such, the Division has granted Hocker Construction party status in this application.
It has long been the Divisions Policy required in all proceeding cases that all land owners
must agree to the right to legal entry and access to the entire pit included the original pit and
any expansions. Since an expansion included by definition the original pit, access must be
secure to the entire pit. The attempt hereof the applicant to establish anew entrance to the
expansion area that does not cross the ordinal pit does not satisfy this requirement, because