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5. Both the APA and SCMRA state that in every case of final agency action the <br />administrative record subject to judicial review is limited in scope to materials actually <br />presented to or considered by the Board at the administrative hearing. The SCMRA, the law <br />allowing this appeal, specifically defines the scope of the administrative record and clarifies <br />the limits of review by the court: <br />"The court shall hear such petition or complaint [for judicial review] solely on <br />the record made before the board. The findings of the board, if supported by <br />substantial evidence on the record considered as a whole, shall be conclusive." <br />(Emphasis added). <br />Section 34 -33- 128(2), C.R.S. (2011). <br />6. Plaintiffs' designation of administrative record fails to comply with the APA <br />and SCMRA as it significantly exceeds the scope of the law. This case seeks judicial review <br />of the Board's November 17, 2010 order on Permit Revision No. 6 for the New Horizon <br />Mine ( "PR -06 "). Plaintiffs' designation, however, designates materials that were not only <br />never presented to or considered by the Board during the administrative hearing on PR -06, <br />but includes multiple documents that are not even related to PR -06.2 None of these <br />documents can be part of the record to be considered upon judicial review as they are not <br />related to PR -06 and were not part of the hearing record before the Board. <br />7. Plaintiffs' designation is overly inclusive and exceeds the limits set forth in the <br />APA and SMCRA as to what constitutes the construction of an administrative record. For <br />items on Plaintiffs' designation list that are related to PR -06, most were never presented to or <br />considered by the Board during the PR -06 administrative hearing held on November 17, <br />2010. Therefore, although related to PR -06, they are not documents that should be included <br />in the hearing record for review as they were not part of the Board's deliberative process at <br />the formal hearing. <br />8. In addition, the Division and Board object to Plaintiffs' designation of "any <br />exhibit offered by Plaintiffs at the November 17, 2010 hearing but refused admission into <br />evidence, including; Letter from Jim Boyd, NRCS, November 16, 2010 and Letter from <br />David Deerstyne, NRCS, November 16, 2010." Plaintiffs' brief at paragraph 3. These letters <br />were produced at the hearing and the Board determined that they were not properly disclosed <br />and therefore did not admit them as evidence at the hearing. Documents that were offered but <br />not admitted into evidence at the administrative hearing were not considered by the Board. <br />Z A significant portion of the Plaintiffs' itemized designation list relate to numerous separate and distinct permitting <br />and administrative processes wholly unrelated to PR -06. Plaintiffs' propose to designate materials related to: Bond <br />Release -12, Permit Renewal -5, Technical Revision -59, Technical Revision -57, Technical Revision -49, Minor <br />Revisions 76, 77, 78, 79 and 80, and Midterm Review -6, all matters previously considered and approved by the <br />Division. In addition, Plaintiffs' designation includes documents that pre -date the PR -06 application submittal of <br />November 12, 2009, as well as documents that were submitted subsequent to the formal Board hearing on <br />November 17, 2010. <br />