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III. Activity after the Filing of the Complaint in This Action <br />17. In connection with WFC's application to revise its permit (designated PR -06 by <br />the Division), plaintiffs submitted the objection letter attached as Exhibit 6, seeking review of <br />PR -06 by the Board. Plaintiffs argued in their objection that WFC's Prime Farmlands <br />investigation and pre -2008 topsoil management practices violated the regulations of the <br />Colorado Coal Program. See, Exhibit 6, Introduction and IT (1) — (3), (6), (17) — (19), (25), (32), <br />(37), (38), (41), (44), and (48) — (52). <br />18. On November 1, 2010 Western Fuels submitted the Applicant's Brief of Issues <br />for Pre - Hearing Conference attached as Exhibit 7. Western Fuels argued that failure to appeal <br />the Division's April 23, 2010 determination foreclosed these claims: <br />Ms. Turner did not seek informal review by the Administrator or formal review <br />by the Board (she instead sought informal review by OSM). She has long since <br />missed the 90 -day statutory deadline in which to seek formal review that is <br />imposed by CRS § 34- 33- 124(1)(a). Therefore, review of this determination <br />cannot now be raised before the Board and Ms. Turner is precluded from raising <br />these issues at the November 17 -18 Hearing. <br />Exhibit 7 at page 2 — 3. <br />19. On December 9, 2010 the Board issued a written Order approving PR -06, <br />attached hereto as Exhibit 8. The Board specifically addressed its jurisdiction , stating: <br />The Objectors have raised numerous objections regarding the classification and <br />handling of the Morgan property's topsoils. Many of the objections concern <br />events occurring prior to the prime lands determination in February 2008 and <br />prior to Western Fuels submitting PR -6. These events are beyond the Board's <br />jurisdiction. <br />Exhibit 8, page 3 120. <br />20. On December 15, 2010, plaintiffs filed an Appeal and Petition for Review of <br />Final Agency Action in this Court, Civil Action No. 10 -CV -548, currently stayed by order of the <br />Court. That Petition seeks judicial review of the approval of PR -06. <br />5 <br />