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2012-08-10_REVISION - C1981008
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2012-08-10_REVISION - C1981008
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Entry Properties
Last modified
8/24/2016 5:05:02 PM
Creation date
2/20/2014 7:58:08 AM
Metadata
Fields
Template:
DRMS Permit Index
Permit No
C1981008
IBM Index Class Name
Revision
Doc Date
8/10/2012
Doc Name
Plaintiffs Response to Motion to Strike Designation of Admin Record Filed by Defendants 2010 CV 548
From
Christopher G. McAnany Dufford, Waldeck, Milburn & Krohn, LLP
To
District Court, Montrose County Colorado
Type & Sequence
PR6
Email Name
DAB
Media Type
D
Archive
No
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were not considered by the Board. Id. Similarly, WFC argues that "[t]he exclusion of these <br />materials ... was proper and cannot be disturbed by this Court." WFC. Mot. ¶ 3(4). This is <br />nothing more than an attempt by Defendants to circumvent review of the Board's action <br />excluding evidence which was potentially helpful to Plaintiffs by excluding it from the appellate <br />record. It is the province of this Court to determine whether the Board's actions excluding <br />evidence were proper; not Defendants themselves. <br />9. Accepting Defendants argument allows them to serve as their own appellate court. <br />If Defendants are able to have this evidence excluded from the record (along with any other <br />evidence before DRMS at the time it acted) based on their subjective decision not to consider <br />such evidence, the end result is that Defendants are insulated from any meaningful review by this <br />Court. Defendants should not be permitted to short- circuit judicial review by selectively <br />choosing what parts of the administrative record they deem it appropriate for this Court to <br />consider. <br />10. On this point, federal cases construing similar provisions of the federal <br />Administrative Procedure Act are instructive. As the Seventh Circuit explained, with respect to <br />judicial review, "[w]hile it is not our job to engage in fact finding or to replace the Board's <br />reasonable conclusions, a mere cursory review of the record is insufficient. Instead, we must <br />take into account the entire record —which would include evidence contrary to the Board's <br />view." Dilling Mech. Contractors, Inc. v. NLRB, 107 F.3d 521, 524 (7th Cir. 1997). <br />11. For its part, WFC similarly tries to exclude documents from the record on a <br />variety of grounds, which Plaintiffs address in the order presented by WFC: <br />a. WFC objects to materials referencing other permit approvals other than PR -06 <br />(Category 1). Plaintiffs object to this request because the record in PR -06 is replete with <br />references to earlier documents in the lengthy permit history, and a document which <br />formed the basis of decision should not be excluded merely because references an earlier <br />proceeding. <br />b. As noted above, DRMS PR -6 documents, including adequacy reviews and various <br />letters (Category 2), are properly part of the record because they detail the deliberations <br />and evidence relied upon by DRMS in arriving at the decision approving PR -06. <br />c. Category 3 items identified by WFC include various transmittal documents. These <br />documents are clearly part of the record of decision and may pertain to notice or timing of <br />various communications. As such they should be retained. <br />d. Category 4 items identified as reports and evidence excluded by the Board must be <br />included in the record. As noted above, meaningful review requires that the Court be able <br />to evaluate the excluded evidence, and whether its exclusion was prejudicial to Plaintiffs. <br />4 <br />
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