2012-01-13_GENERAL DOCUMENTS - P2011029

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using the Subject Property. The Act requires that an applicant's notice of intent affirm that the prospecting will be conducted in accordance with the listed terms and conditions. C.R.S. § 34- 32- 113(2)(b). DRMS established, as one of the terms and conditions of a notice of intent, that "[p]rospecting shall be conducted in such a manner as to comply with all applicable local, state and federal laws ...." 2 C.C.R. 407 -1 R. 5.3.6; see also C.R.S. § 34- 32- 115(c)(I). Further, the Estate, as the lawful owner of the Subject Property, has the fundamental right to exclude others from entering or using its property. This right is constitutionally protected. See Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 82 (1980) ( "It is true that one of the essential sticks in the bundle of property rights is the right to exclude others. Kaiser Aetna v. United States, 444 U.S. 164, 179 -80 (1979). "); see also U.S. Const., Amend. V; Colo. Const. Art. II, § 15. 16. The DRMS's stated deadline to submit public comments regarding the NOI was October 11, 2011. See Exhibit B. However, the Agreement—and with it Eagle's right to enter and use the Subject Property —did not terminate until October 17, 2011. Therefore, the Estate's December 16, 2011 letter to DRMS was timely, under the circumstances. It was impossible for the Estate to submit notice of its present objection to the DRMS by October 11, 2011, because Eagle's (and its assigns') right to enter and use the Subject Property had not been terminated. Further, the DRMS has nonetheless subsequently characterized the Estate's December 16, 2011 correspondence as a comment letter and also subsequently provided notice of its conditional approval of the NOI to the Estate consistent with Rule 5.1.3(d)(I) ( "The Office shall send notice of its decision on a NOI to the prospector and any person who filed a timely comment. "). See Exhibit G. Therefore, the Estate's appeal is both timely and proper under Rule 5.3.1(d)(II). 17. DRMS sent notice of its decision to Alma, with copy to Lewicki and the Estate on January 6, 2012. See Exhibit G. The Estate filed this appeal within five business days of receiving the DRMS's notice of its decision. Therefore, the appeal is timely under both rules. IV. The Board Must Terminate the NOI 18. The NOI was not properly approved because Eagle cannot conduct the prospecting activities without violating the terms of the NOI and Colorado and federal law. The NOI also cannot be construed to authorize that which is prohibited by state and federal law. 19. As DRMS recognized in its approval letter, the NOI also requires all prospecting activities thereunder to be conducted in compliance with all applicable local, state and federal laws. See Exhibit G; Exhibits A, NOI, § V,113. Additionally Rule 5.3.6 requires that "All prospecting shall be conducted in such a manner as to comply with all applicable local, state and federal laws ...." 20. Under Colorado and federal law, it is not lawful for a person to physically intrude upon the property of another without proper permission from the person legally entitled to possession of that property. See generally U.S. Const., Amend. V ( "[N]or shall 4