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m- zoozl-o3 <br />C. E. BROOKS & ASSOCIATES, P.C. <br />303 EAST SEVENTEENTH AVENUE SUITE 650 DENVER, COLORADO 80203 <br />(303) 297 -9100 fax: (303) 297-9101 <br />CONSTANCE E. BROOKS <br />August 14, 2012 <br />CERTIFIED MAIL, RETURN RECEIPT REQUESTED <br />Timothy J. Flanagan <br />Fowler, Schimberg & Flanagan <br />1640 Grant Street <br />Denver, Colorado 80203 <br />Re: Hazeltine Mine Technical Revision to Address Changes in Groundwater Table <br />and Flooding of Adjacent Land <br />Dear Mr. Flanagan, <br />We received your response of July 5, 2012, to our letter concerning Aggregate Industries <br />liability for the flooding that has occurred on the land of Fred Orr of Equity Funding LLC. <br />We are aware that Aggregate Industries filed a technical revisions request on May 4, 2012. <br />Its submission to the Division of Reclamation Mining and Safety (DRMS) on July 6, 2012 identified <br />the verification of approvals and /or agreements, as well as any additional permit requirements that <br />it may need from other agencies. <br />Although Aggregate Industries has proposed to restore Mr. Orr's property by implementing <br />a revision that would include the installation of a pump station to divert surface flows into First <br />Creek, it is still liable to pay compensation to Mr. Orr for the trespass on his land and the loss of use <br />in the interim. See Burt v. Beautiful Savior Lutheran Church of Broomfield, 809 P.2d 1064, 1067 <br />(Colo. App. 1990) (Defendant's construction of a drainage pipe in such a way as to cause water to <br />leak in plaintiff's basement amounted to a trespass.); Bd. of County Commissioners, Weld County <br />v. Slovek, 723 P.2d 1309, 1314 (Colo. 1986) (Damages awarded for injury to real property should <br />include diminution in market value or cost to restore, the loss of use of the land, and any discomfort <br />or annoyance to the landowner who occupies the land.). <br />We were more than a little surprised that Aggregate Industries denies liability for the flooding <br />and the changes to the ground water table. The denial contradicts the findings made in the DRMS <br />inspection report from November 4, 2011 that Aggregate Industries is responsible for the changes <br />to the ground water table and the flooding on Mr. Orr's property. The DRMS report concluded that <br />the Hazeltine Mine operations are causing ground water mounding and elevated ground water levels. <br />Particularly, the report concluded that the slurry wall installation by Aggregate Industries in 2005 <br />has caused the ground water to backup and the water table to rise. As a result, once dry areas are <br />flooded and wetland vegetation has developed. <br />