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role in the pre- hearing procedure. Plaintiffs erroneously indicate that "the DRMS held a pre - <br />hearing conference at which it decided which issues would be before the Board ... as well as what <br />parties would be allowed to appear at the hearing ". Response at ¶5. Plaintiffs argue that the pre - <br />hearing conference was held and conducted by the Division and that during the pre- hearing <br />conference the Division made determinations regarding issues to be presented to the Board and <br />establishment of parry status of interested persons. That is not the case, and Plaintiffs have <br />again confused the distinct and separate roles of the Division and Board. See, Cold Springs <br />Ranch v. Dept. of Nat. Res., 765 P.2d 1035 (Colo. App. 1988)( The Division and the Board are <br />definite and distinct entities). <br />6. As discussed above, by order dated October 28, 2010 the Board, not the Division, <br />scheduled the pre- hearing conference and appointed Bruce Stover to act as the hearing officer. <br />Although Mr. Stover is an employee of the Division's Inactive Mine Program, he was presiding <br />over the pre- hearing conference as a representative of Board. In his capacity as pre- hearing <br />officer, and acting on behalf of the Board, Mr. Stover, not the Division, made the initial <br />determinations regarding party status and identified issues for Board consideration. The <br />proposed hearing order was a draft order that was later adopted by the Board during the formal <br />hearing. Therefore, all procedural determinations regarding the pre- hearing and the formal <br />hearing were made by the Board, not the Division. <br />7. Plaintiffs again allege due process violations at paragraph 8 of the Response. <br />Specifically, Plaintiffs re -assert their allegation that acts of Division staff limited the ability of <br />objectors to attend and present evidence at the November 17 formal hearing. As argued above, <br />the Division made no decision regarding the ability of objecting parties to appear and present <br />evidence at the hearing. All procedural determinations were made by the Board. <br />8. Plaintiffs cite a 10`h Circuit case, Southern Utah Wilderness Alliance v. Office of <br />Surface Mining Reclamation and Enforcement, et al, 620 F.3d 1227(10`h Cir. 2010), as an <br />example of when an agency's involvement in a matter is critical to a decision making process <br />such that the agency's conduct can be subject to judicial review. Although the Office of Surface <br />Mining Reclamation and Enforcement ( "OSM ") provides Federal oversight for the Colorado <br />coal program, OSM and the Division are not interchangeable entities. The federal administrative <br />