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2. In evaluating a motion to dismiss under C.R.C.P. 12(b)(5), "all averments of material fact <br />must be accepted as true and allegations must be viewed in the light most favorable to the <br />plaintiff." O'Neill v. Simpson, 958 P.2d 1121, 1123 (Colo. 1998). <br />3. This case is an action for judicial review, pursuant to C.R.S.A §§ 34- 33- 119(9) and 34 -33- <br />128 of the Colorado Surface Coal Mining Reclamation Act ( "CSCMRA "), of the decision <br />by the Mined Land Reclamation Board (the "Board ") to approve Permit Revision Number <br />6 ( "PR -6') for the New Horizon 2 surface coal mine. <br />4. Plaintiffs are landowners and farmers whose surface rights are affected by PR -6. Plaintiffs <br />object to the approval of the permit because they do not believe it satisfies the requirements <br />of CSCMRA regarding protection and reclamation of prime farmland soils. Plaintiffs <br />submitted several comments during the public comment period and attended an informal <br />conference held by the DRMS on February 18, 2010. The DRMS issued a proposed <br />decision to approve the permit on October 1, 2010. Because Plaintiffs believed that the <br />DRMS proposed decision to approve the permit did not adequately address their concerns <br />about the reclamation of prime farmland soils, they requested a formal hearing before the <br />Board to review the proposed decision. <br />5. The Board held the formal hearing on November 17, 2010. Prior to the hearing, on <br />November 3, 2010, the DRMS held a prehearing conference at which it decided which <br />issues would be before the Board at the November 17 hearing, as well as what parties <br />would be allowed to appear at the hearing. Bruce Stover, director of the Colorado Inactive <br />Mine Reclamation Program, a subset of DBMS, presided over the prehearing conference. <br />The November 3 date is significant because the public had until November 15 to submit <br />objections and requests for a formal hearing. Several objectors had not yet submitted their <br />objections and requests for a formal hearing when the prehearing conference took place and <br />therefore did not have an opportunity to participate in the prehearing conference. Those <br />parties were unable to appear as parties at the subsequent formal hearing on November 17. <br />6. The parties to the November 17 hearing were the DRMS, which presented its proposed <br />decision to approve the permit, Western Fuels Colorado, LLC, the mining company <br />applying for the permit, and Plaintiffs. At the hearing, the Board approved PR -6. This <br />action is a review of that decision and the procedure by which it was made. <br />7. DRMS argues that it did not issue the final decision in this matter, and that it is therefore <br />not a proper party. In a similar situation, the l Oth Circuit held that a decision by the Office <br />of Surface Mining Reclamation and Enforcement ( "OSM ") (the federal counterpart to the <br />DRMS) was subject to review even though its recommendations were subject to approval <br />by the Secretary of the Department of the Interior because the OSM's recommendation was <br />"a necessary part of the Secretary's decision" and the plaintiff had alleged that OSM failed <br />to follow procedural requirements. Southern Utah Wilderness Alliance v. Office of Surface <br />2 <br />