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I. Plaintiffs' Designation was Improper. <br />1. Under the Colorado Coal Mining statute, the administrative record for purposes of <br />a petition for review is limited to the matters actually presented to the Mined Land Reclamation <br />Board (the "Board "): <br />The court shall hear such petition or complaint solely on the record made before <br />the board. The findings of the board, if supported by substantial evidence on the <br />record considered as a whole, shall be conclusive. <br />CRS § 34 -33- 128(2). <br />2. Here, plaintiffs' designation of the administrative record is objectionable because <br />it consists almost entirely of materials that were never presented to, or considered by, the Board <br />in its review of PR -06. Plaintiffs' improper designations fall into the categories shown below in <br />this section. For purposes of outlining these objections, plaintiffs' index of record materials is <br />attached hereto as Exhibit 1, with documents numbered (unlike in the original) for reference. <br />3. Based on the following grounds, Western Fuels - Colorado LLC requests that the <br />Court strike the plaintiffs' designation of the record in its entirety and replace it with the <br />designation attached hereto as Exhibit 2. <br />Category 1: the Court should exclude materials pertaining to other permits besides PR- <br />06. Documents 2 through 39 fall into this category. Plaintiffs did not preserve any rights to <br />appeal the approval of any other permit revision other than PR -06. <br />Category 2: the Court should exclude materials pertaining to PR -06 but only at the <br />Division level, not the Board level of review. For example, prior to the Board hearing <br />concerning PR -06, a lengthy process of so- called "adequacy reviews" occurred. During that <br />process, PR -06 as originally submitted to the Division was amended in response to requests by <br />the Division and comments from interested parties. However, none of these revisions is relevant <br />because only the final form of PR -06, i.e. the version of PR -06 that was actually approved by the <br />Division, was reviewed by the Board. WFC directly presented some of these materials to the <br />Board as its exhibits for the hearing. However, other than those materials that were given to the <br />Board, these materials were never provided to the Board and therefore do not belong in the <br />administrative record for purposes of this appeal. Also, letters that were written to the DRMS <br />during their permit review, but prior to the Division's approval of PR -06, were not reviewed by <br />the Board (unless separately submitted after the Division's proposed approval of PR -06) and <br />therefore are not part of the record. Documents 40 through 411 fall into this category (pages 2 <br />through 11 of Exhibit 1). <br />Category : the Court should exclude materials that were submitted to DRMS after the <br />approval of PR -06, and before the hearing on PR -06, but which dealt with permit matters other <br />than PR -06. Also, the Court should exclude ministerial documents such as, for example, the <br />cover letter accompanying the transmittal of an objection letter from DRMS to WFC (Document <br />423, Exhibit 1 page 12). The Board did not specifically consider such a letter. The documents in <br />this category are: Documents 414 -420, 422 -428, and 439 -442. <br />100110167.1 } 2 <br />