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Defendant Western Fuels Colorado, LLC ( "WFC "). Plaintiffs filed suit in this Court seeking <br />judicial review of their pro se challenge of final administrative action by the Division of <br />Reclamation, Mining, and Safety ( "DRMS ") and its approval by the Colorado Mined Land <br />Reclamation Board (the `Board ") known as Permit Revision Number 6 ( "PR -06 "). <br />2. Defendants WFC, DRMS and the Board have separately moved the Court to strike <br />Plaintiffs designation of record. Plaintiff's designation included all of the documents that could <br />be identified as constituting the PR -06 file, as referenced in the official DRMS electronic <br />document management system. <br />3. Defendants argue that Plaintiffs designation of record exceeds the limits set forth <br />in the Colorado Administrative Procedure Act, C.R.S. § 24 -4 -106, ( "APA ") and the Colorado <br />Surface Coal Mining Reclamation Act, C.R.S. § 34 -33 -128 ( "SCMRA "). WFC Mot. ¶ 1; DRMS <br />Mot. ¶¶ 6 -7. Specifically, Defendants assert that record on review must be limited exclusively to <br />documents that the Board actually considered when it reviewed PR -06. DRMS Mot. ¶ 8. As <br />DRMS and the Board put it, the agency taking final action is the Board, not the Division. DRMS <br />Mot. ¶ 3. Therefore, the argument goes, documents which comprise PR -06, as compiled by the <br />Division, are really not part of the record or subject to the Court's review here. This argument is <br />a preposterous attempt to render judicial review meaningless, contrary to established <br />administrative law. <br />4. Under the Colorado Administrative Procedure Act, a party aggrieved by a final <br />administrative action may seek judicial review of the agency action. C.R.S. § 24 -4 -106.1 In <br />reviewing the agency action, the legislature has directed the court to look at the whole record to <br />determine whether the action is supportable. Colo. Real Estate Comm'n v. Hagegan, 947 P.2d <br />933, 937 (Colo. 1997). Likewise, under SCMRA judicial review of administrative action is <br />based on the record: <br />"The court shall hear such petition or complain solely on the record made before the <br />board. The findings of the board, if supported by substantial evidence on the record <br />considered as a whole, shall be conclusive. The court may affirm, vacate, or modify any <br />1 C.R.S. § 24- 4- 106(7) provides "If the court finds no error, it shall affirm the agency action. If it finds that the <br />agency action is arbitrary or capricious, a denial of statutory right, contrary to constitutional right, power, privilege, <br />or immunity, in excess of statutory jurisdiction, authority, purposes, or limitations, not in accord with the procedures <br />or procedural limitations of this article or as otherwise required by law, an abuse or clearly unwarranted exercise of <br />discretion, based upon findings of fact that are clearly erroneous on the whole record, unsupported by substantial <br />evidence when the record is considered as a whole, or otherwise contrary to law, then the court shall hold unlawful <br />and set aside the agency action and shall restrain the enforcement of the order or rule under review, compel any <br />agency action to be taken which has been unlawfully withheld or unduly delayed, remand the case for further <br />proceedings, and afford such other relief as may be appropriate. In making the foregoing determinations, the court <br />shall review the whole record or such portions thereof as may be cited by any party. In all cases under review, the <br />court shall determine all questions of law and interpret the statutory and constitutional provisions involved and shall <br />apply such interpretation to the facts duly found or established." (emphasis added) <br />2 <br />