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the original pit is still included, there is not agreement that the original pit will not be used nor <br />is the original pit reclaimed. Thus access must be established to the entire pit. The position <br />advocated here by legal counsel for the Division and the local office in Durango that the 75% <br />owner's permission for access is all that is required, contradicts and violates the long standing <br />policy of the Division that all owners must agree and therefore represents a substantial and <br />significant new precedent if followed by the Division. As is argued below, the law is clear on <br />this subject and supports the divisions long standing policy and a departure here is unjustified <br />and would be contrary to law and subject to legal attack on appeal. <br />The Division has taken the legal position that permission of Zellitti Properties for access <br />is irrelevant since Anthony Zellitti and his wife may grant unlimited access to any person <br />without the consent of the 25% tenant in common. This position is directly opposite of <br />established Colorado law. <br />The Colorado Supreme court has held, "The rule in this jurisdiction is that in an action to <br />recover real property one tenant in common may recover possession of the entire tract as <br />against all persons except his co-tenants." Weese v Barker, 7 Colo. 178, 2 P. 919; Carlson v <br />McNeil 162 P. 2d 226 (Colo. en banc. 1945). Even a minority tenant in common may evict a <br />tenant over the objection of the majority tenant in common, Didamo v Tyrol Sport Arms <br />company 680 P. 2d 1328 (Colo. App. 1984). <br />These cases support the policy of the Division that all tenants in common must agree to <br />the access to support a permit or an expansion of a permit, because as here, regardless of <br />Anthony Zellitti's wishes, The minority Tenant in common may object to the possession of the <br />premises by Hocker as operator and therefore all required access is not confirmed. <br />2. Issue 2. The reservation of mineral rights on the expansion property by Zellitti Properties <br />does reserve the sand and gravel rights and this issue is a question of fact for a court not the <br />Division. <br />According to the Division own legal opinion, the issue of the reservation of the mineral rights by <br />Zellitti Properties, is a complex legal issue typically determined by a Court. The reservation in a <br />deed as occurred here is a matter of intent of the Grantor, here Zellitti Properties. <br />The deed from Zellitti Properties to Barry and Martha Zellitti is offered herein in <br />evidence. The deed was executed at a time when the Zellitti pit already existed and was <br />permitted. There is no reason to believe that sand and gravel was not meant to be reserved, <br />and, it is logical to assume that Zellitti Properties intended at that time to reserve its sand and <br />gravel rights. The Division lawyer opined in his opinion letter, "Even though the sand and gravel <br />was not specifically reserved, it can be reasonably assumed that the reservation of mineral <br />rights included sand and gravel because that was what was being mined at the time of the <br />12991 conveyance." See June 5, 2009 Interoffice Memorandum from Jeff Fugate, Asst. Atty. <br />General, in the file. There fore the proposed expansion area is into property in which it is <br />reasonable to assume Zellitti Properties has sand and gravel right and its permission for the <br />access to the pit is required. The Division should deny the petition until this issue is resolved by <br />an appropriate court as the Asst. Atty. General recommends.