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Despite being obligated to affirmatively demonstrate that the Bench One is equal to <br />or better than the native material, the record fails to meet this standard, and the <br />approval is therefore arbitrary and capricious. <br />a. The Board Erred in Excluding Evidence Showing that Bench One <br />Material is Inferior. <br />At the hearing on November 17, 2010 the Morgans attempted to offer into <br />evidence two letters, one from Jim Boyd, a Resource Conservationist with the NRCS <br />Norwood office, and the second from Dave Dearstyne, a Soil Scientist with NRCS. <br />R.7377 -7378. The letters, which are found at R. 8445 -8451, address one of the central <br />questions in this action, namely, whether the Bench One soil substitute is a suitable <br />topsoil material. Both were excluded from the record upon the objection by the <br />attorney for DRMS on the grounds that they were not timely produced in advance of <br />the hearing. Id. at 7378. Admittedly, the documents were not timely produced <br />because, as they recount, the NRCS personnel who authored them were not able to <br />physically inspect the Morgan Property until November 16, 2010, one day prior to the <br />Board hearing. <br />Plaintiffs do not disagree that due process requires notice, an opportunity to be <br />heard, and an opportunity to rebut evidence which is to be offered. However, due <br />25 <br />