2012-03-30_GENERAL DOCUMENTS - C1981008

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offending portions of these permits were never implemented, and PR -06 increased the required topsoil depths. OSM made no findings and sought no enforcement action as to past conduct by WFC. Instead, OSM stated it would conduct "a technical evaluation of DRMS's permit findings attendant to the operation and reclamation plans for prime farmlands included in the currently approved permit, as revised by PR -6." Id. Plaintiffs could have sought review of this determination by filing a notice of appeal pursuant to 43 CFR § 4.1280 as OSM advised plaintiffs in Exhibit 9. Taking this step and the step of subsequent appeal to the Interior Board of Land Appeals is required in order to obtain judicial review of the OSM determination. See, 43 CFR 4.1287(a)(3). However, plaintiffs failed to take these steps and OSM's conclusion therefore is no longer reviewable in any forum. GSM's findings are in any event not reviewable in this Court, but only in federal court pursuant to 30 U.S.C. § 1276(a). SMCRA does not vary the Colorado state rules discussed above in reviewing any action taken by a state authority such as DRMS. 30 U.S.C. § 1276(e) ( "Action of the State regulatory authority pursuant to an approved State program shall be subject to judicial review by a court of competent jurisdiction in accordance with State law. ") V. Plaintiffs Failed to Exhaust Remedies. The above conclusions are confirmed by what happened after the filing of this case. When the Division's proposed decision to approve PR -06 was issued months after the commencement of this action, plaintiffs attempted to raise issues pertaining to the Prime Farmlands investigation and pre -2008 topsoil management in their challenge to PR -06. See, Exhibit 6. Western Fuels disputed their right to do so (see Exhibit 7), and the Board agreed with Western Fuels: "These events are beyond the Board's jurisdiction." Exhibit 8, page 3 120. The 14