2013-03-22_REVISION - C1981008 (2)

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Plaintiffs seek judicial review of the administrative hearing that took place on November 17, 2010. Yet, Plaintiffs ask this Court to consider events and correspondence that took place subsequent to the hearing date, some by as many as two years. For example, Plaintiffs ask that the court consider and give weight to: various letters and correspondence from OSM that post- date the November 2010 hearing (Opening Brief, pp. 6, 9 -12; R: 8591- 8972); a civil suit filed by Plaintiffs that went to trial in November 2012 (Opening Brief, p. 5); and Permit Revision No. 7 submitted in December 2012 (Opening Brief, p. 6). Logically, consideration of anything that took place after the November 17, 2010 hearing is improper, as those matters could not have been part of the Board hearing. The Board's approval of PR -6 triggered additional administrative and judicial procedures; however, subsequent proceedings cannot be considered by this Court in its review of the propriety of the Board's decision to approve PR -6. To do so is inapposite to the fundamental principles of judicial review. § 34 -33- 128(2); § 24 -4- 106(6). The Court should not consider or give any weight to the various OSM correspondence. 20 R: 8591 -8972. It is improper for the Court to afford the OSM correspondence any consideration or weight in the current judicial review. The probative value of the content of the correspondence is irrelevant to judicial review; the only important factor is that any correspondence that post -dates an administrative hearing could not have been considered at that hearing and, therefore, cannot be considered during the judicial review. 20 Plaintiffs incongruously state "it is unclear whether any of this information was brought to the attention of the Board by DRMS." Opening Brief, p. 11. None of this information, however, could have been considered by the Board because the OSM letter was dated July 15, 2011 -8 months after the Board hearing. 31