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Exhibit 5 at 10. <br />9. On April 1, 2010 the OSM referred the complaint contained within Exhibit 5 to <br />the Division for response, numbering the complaint TDN #X10 - 140 -182 -003. <br />10. On April 23, 2010, the Division responded by issuing the determination attached <br />as Exhibit 2. <br />11. In Exhibit 2, the Division determined that it "has taken appropriate action under <br />its regulatory program to ensure that Western Fuels — Colorado (WFC) is in compliance with <br />Permit No. C -1981 -008 and the requirements of the State program." Id. at 1. <br />12. The Division also found that the approval of the permit revision PR -05 that <br />permitted the topsoil handling practices, which plaintiffs complained of, was reasonable. Id. at 7 <br />( "The Division's initial determination that the relevant area was not Prime Farmland was <br />reasonable and not arbitrary, capricious, or an abuse of discretion. ") <br />13. On May 6, 2010 plaintiffs sought "informal review" by the OSM Regional <br />Director concerning the Division's determination. <br />14. On or before July 23, 2010, the 90 -day period to seek review by the Board of the <br />Division's determination, as stated in CRS 34- 33- 124(1)(a) and 4 CCR 407 -2, Rule 5.03.5, <br />expired without plaintiffs' seeking such review. <br />15. On August 23, 2010, plaintiffs filed this action without seeking Board review of <br />the Division's determination or awaiting completion of the OSM informal review. <br />16. Plaintiffs did not exhaust available state law administrative remedies prior to <br />filing suit. <br />4 <br />