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state: <br />"OSM's technical evaluation of permit C- 008 -81 identified several areas within the <br />approved permit where soils and overburden date are insufficient to reasonably conclude <br />the prime farmland reclamation plans therein have been prepared to be in accordance <br />with the state program performance standards." Exhibit B, p. 1. <br />As a result, OSM ordered a technical review which involved soil sampling at the expense of <br />WFC. That technical analysis is ongoing as of this date. The upshot is that PR -06 is still under <br />review as a result of deficiencies identified by OSM, and the prior approvals were found to be in <br />error as a result of deficiencies identified by OSM and later acknowledged by DRMS.S Contrary <br />to the claims of WFC, Plaintiffs have preserved their administrative remedies which, as of this <br />writing, remain very far from being exhausted. <br />III. CONCLUSION <br />For the foregoing reasons Defendant's motion to dismiss must be denied. However, to <br />the extent that the Court deems there to be any disputes as to jurisdictional facts, Plaintiffs do <br />hereby request an evidentiary hearing with respect to same. <br />Respectfully submitted this 27th day of April, 2012. <br />DUFFORD, WALDECK, MILBURN & <br />KROHN, LLP <br />/s/ Christopher G. McAnany <br />Christopher G. McAnany, #21962 <br />Matthew A. Montgomery, # 44039 <br />Attorneys for Plaintiffs <br />5 The court should note that this action was stayed at the request of WFC on September 15, 2011 because of this <br />ongoing oversight process. This filing is an admission that the agency process is not final. <br />11 <br />