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Plaintiffs have specifically challenged these decisions in their appeal. See Appeal and <br />Petition for Review of Final Administrative Action, ¶ 20. <br />e. Category 5 items are identified as those submitted to the Division or various other <br />agencies subsequent to the approval of PR -06. Plaintiffs object to this request because, as <br />noted previously before this Court, the federal Office of Surface Mining acted on August <br />1, 2011 pursuant to its oversight authority found a number of deficiencies in with respect <br />to PR -06, and demanded a number of field investigations specific to PR -06. In summary, <br />the OSM "..identified several areas within the approved permit where soils and <br />overburden data are insufficient to reasonably conclude that the prime farmland <br />reclamation plans therein have been prepared to be in accordance with the state program <br />performance standards.." OSM letter to DRMS August 1, 2011, attached as Exhibit 3. <br />Admittedly, this oversight directive was not before the Board at the time it reached its <br />decision, but the parties, including WFC and DRMS, have complied with these <br />directives, and data gathered pursuant has been added to the PR -06 permit file. Plaintiffs <br />contend that this information is properly part of the PR -06 record2. <br />f. Category 6 is identified as duplicative items. Plaintiffs agree that duplicates should be <br />omitted from the record, but they again disagree that materials not expressly given to the <br />Board should be excluded from the record. <br />g. Category 7, is identified as letters of opposition or support brought by persons other <br />than Plaintiffs or WFC. The record reflects numerous public comment and similar <br />documents pertaining to PR -06 that were provided by neighbors, mine employees, and the <br />like. Many of these documents were referenced at the hearing before the Board, and the <br />Board allowed testimony in a similar vein from various mine employees. The documents <br />are part of the PR -06 record and should not be excluded. <br />12. Plaintiffs are cognizant of the difficulty faced by this Court in adjudicating the <br />competing positions of the parties relative to the designation of the record: determining what <br />should be in the record implicates review by the Court of the documents themselves, which <br />account for thousands of pages. This is neither a reasonable, nor a practical use of the Court's <br />time. Ultimately, it will be up to the parties to organize their arguments in their respective briefs <br />by referring the Court to the relevant portions of the record. Undersigned counsel admits a <br />degree of uncertainty in trying to designate the record is in this case. Plaintiffs identified the <br />record documents as best they could based upon the electronic DRMS files available to them, <br />and there are some areas of agreement as to the documents that constitute the "record." <br />2 Plaintiffs are cognizant that this material may not have been supplied to the Board by the Division. Nevertheless, <br />they believe that these federal oversight actions bearing directly on the issues under appeal here cannot properly be <br />excluded from the record and treated as if they had never occurred. <br />