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topsoil. DRMS Rule 3.1.10(4), requires that the "plan shall provide for the greatest <br /> probability of success in plant establishment and vegetation development." <br /> Accordingly, logic dictates that, if additional topsoil would increase the probability <br /> of success in plant establishment and vegetation development, then the <br /> Revegetation Plan would by definition fail to meet this standard. If chances of <br /> success are better with topsoil, then a plan without topsoil does not "provide for the <br /> greatest probability of success." <br /> Sitting as the decisionmaker in adjudicatory hearing, the Board's ultimate <br /> responsibility was to determine whether the Reclamation Plan at issue either did— <br /> or did not—satisfy DRMS's rules for approval. But the Board fundamentally <br /> misunderstood its role, as indicated by the Board's deliberations. At one point, <br /> Board Member Nelson framed this fundamental question well enough, commenting <br /> that the objector "clearly states this does not meet our own rules and regulations, <br /> but when asked of the Department they clearly state that it does." But deliberations <br /> thereafter took a wrong turn and the Board became distracted by inappropriate <br /> considerations; and the Board never returned to the fundamental and <br /> determinative question of rule compliance. Instead, the Board's deliberations <br /> indicate that it made its decision based upon two lines of reasoning: 1) a belief that <br /> it is not the state's job to "make° these two parties agree," but it is rather the <br /> parties' "responsibility to work this out;" and 2) a belief that the Board needed to <br /> simply "move on" because there may be opportunities to fix any deficiencies in the <br /> plan at a later date.1 As discussed below in Part II below, both of these rationales <br /> are clear error and reflect a fundamental misunderstanding of the Board's proper <br /> role in an adjudicatory hearing. <br /> In addition, as discussed below in Part III below, an absence of reliable evidence <br /> regarding the quality and depth of topsoil that is currently on O'Brien land led the <br /> Board to rely upon incredibly misleading and inaccurate testimony and evidence on <br /> the topic. In one particularly egregious moment near the end of the hearing, after <br /> the Board questioned the Division's main testifying staff member, Patrick <br /> Lennberg, about why he believed that the topsoil on the O'Brien property was <br /> already adequate, Mr. Lennberg brought up slide with a 2023 photograph showing <br /> particularly lush green grass on the O'Brien property. Mr. Lennberg testified as if <br /> 1 Throughout this Petition, references to testimony and quotations are based upon the Youtube <br /> video of the September 17th hearing, available at https://www.youtube.com/@dnrmlrb- <br /> dnr5160/streams (last accessed Nov. 14, 2025). <br /> 2 <br />