2013-03-22_REVISION - C1981008 (2)

Home Browse Search

a. Topsoil Management: Soil Suitability Findings The Board considered evidence and heard testimony regarding the complex issue of topsoil resource management, topsoil redistribution, and the suitability of the Bench 1 subsoil as replacement subsoil. R: 7318 -7321; 7364 -7370; 7387 -7388; 7854 -7857. Plaintiffs are correct that "this matter involves some technical complexity." Opening Brief, p. 30. However, Plaintiffs are improperly asking this Court to make its own finding of fact regarding many aspects of the complex technical evidence submitted to the Board related to Bench 1 suitability. Opening Brief pp. 23 -25. Judicial review is not a de novo trial. The Board as finder -of -fact, not the reviewing court, weighs the evidence and determines the credibility of witnesses. See McClellan v. Meyer, 900 P.2d 24, 34 (Colo. 1995) (quoting Bd. of Assessment Appeals, 762 P.2d at 151). Contrary to Plaintiffs' arguments, the Board considered evidence that, based on physical and chemical analyses, the Division determined that the Bench 1 material is equal to or better than the available topsoil and is the best material available in the permit area to support revegetation. R: 7854 -7855. The Board determined that the Bench 1 material was a suitable replacement subsoil. R: 8477.13 This technical, factual finding by the Board is substantially supported by the record comprised of detailed facts and technical evidence regarding the suitability of the Bench 1 subsoil as a suitable substitute for Lift B soils and is entitled to great 13 Board member Randall found that "I'm also moved by the fact that the Barx soil will be used throughout the Morgan property, and the finding by the [Division] that's been concurred with by NRCS that the B lift soils are the same as the Bench 1 soils for the east 20 acres. I find that compelling too. I will ... defer to the experts, NRCS and the [Division], that there is an equivalency there." R: 7429. ME