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§34 -33 -128 of the Colorado Surface Coal Mining Reclamation Act ( "Act ") and C.R.S. §24 -4- <br />106 of the Administrative Procedures Act ( "APA "). <br />2. Plaintiffs admit, at paragraph 8 of Plaintiffs' Response, that the Division's <br />proposed decision is not final agency action subject to judicial review. However, Plaintiffs argue <br />that the Division is a proper Defendant in this judicial review matter because of its critical <br />participation in the Board's decision making process. Response at ¶8. As argued below, <br />Plaintiffs are mischaracterizing the role the Division played in the Mined Land Reclamation <br />Board's ( "Board ") decision making process regarding the approval of PR -6. <br />3. The Division issued its proposed decision to approve PR -6 on October 1, 2010. <br />This proposed decision is not a recommendation to the Board but in fact the Division's final <br />decision based on a thorough technical review of the application. The proposed decision <br />becomes final if no appeal/objection is received. See, C.R.S. §34 -33- 119(6); 2 CCR 407 -2 Rule <br />2.07.04(3)(c). On October 21, 2010, Plaintiffs requested that a formal Board hearing be held to <br />review the Division's proposed decision. This request for hearing was an administrative appeal. <br />Upon appeal the Division's proposed decision does not become a recommendation to the Board; <br />it remains the Division's final decision. The November 17 hearing was an appeal hearing, <br />therefore, the Division participated in the formal hearing as a party, not as "staff' to the Board.1 <br />4. On October 28, 2010, based in part on a request from Western Fuels Colorado, <br />the Board convened a special hearing, which was attended telephonically by Plaintiffs, to set the <br />formal hearing date and discuss pre- hearing issues. The Board issued a written order ruling on a <br />variety of pre- hearing matters raised by the Plaintiffs, the Division, and WFC. The Board <br />determined that a pre- hearing conference would be held in this matter and that all interested <br />persons who filed letters of objection could participate at the pre- hearing conference. The Board <br />appointed Bruce Stover as the pre- hearing conference officer. <br />5. Plaintiffs' Response at Paragraph 5 misstates the procedure regarding the pre - <br />hearing conference held on November 3, 2011, and in doing so mischaracterizes the Division's <br />1 During administrative hearings the Division appears before the Board as either staff or as a party. The Division's <br />role in the hearing depends on the nature of the hearing itself. In most administrative matters the Division appears as <br />staff to the Board and the Division's role is as finder of fact for the Board, meaning they issue recommendations to <br />the Board based on the Division's technical expertise. In all enforcement and appeal matters the Division appears as <br />a party, meaning the Division is subject to Ex Parte rules when communicating with the Board. <br />