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this was proof of adequate topsoil on the previously-mined land. But this testimony <br /> was incredibly misleading to the Board. Whether Mr. Lennberg realized it or not, <br /> the lush grasses that Mr. Lennberg repeatedly pointed to while testifying were <br /> actually located in a part of the O'Brien property that has never been mined! <br /> Accordingly, this lush green grass was not proof that in 2023 "the establishment of <br /> the vegetation is pretty thick." Rather, what the Board was actually seeing (without <br /> realizing it) was a great example of the type of vegetation that naturally grows upon <br /> the surrounding O'Brien property when it never been mined. This photograph was <br /> most definitely not evidence of adequate topsoil and revegetation on the areas of <br /> O'Brien property that have been impacted by mining activity. <br /> And while this misleading testimony ought to be ample cause for the Board to <br /> want to reconsider its decision, as additional support for this Petition, the O'Briens <br /> submit herewith a report Aaron DeJoia, a Certified Professional Agronomist and <br /> Certified Professional Soil Scientist. Mr. DeJoia has sampled, analyzed, and <br /> compared the topsoil on O'Brien property both inside the mined area and outside of <br /> the mined area (i.e., near the area repeatedly highlighted by Mr. Lennberg's <br /> testimony). In short, Mr. DeJoia found the soils outside of the mined area to be <br /> excellent, while the soils inside of the mined area were severely deficient. <br /> II. THE PROPER ROLE OF THE BOARD <br /> DRMS's Mission Statement emphasizes that it is committed to protecting not <br /> only miners, but also the public and the environment, and to ensure that all mined <br /> land is reclaimed to beneficial use. Toward this end, DRMS Rule 3.1.10(1) <br /> effectively defines successful revegetation as the establishment of a "diverse, <br /> effective, and long-lasting vegetative cover that is capable of self-regeneration <br /> without continued dependence on irrigation, soil amendments or fertilizer, and is at <br /> least equal in extent of cover to the natural vegetation of the surrounding area" <br /> (emphasis added). <br /> And as noted above, it is fundamental and well-established that an agency must <br /> follow its own rules. The Colorado Supreme Court has thoroughly summarized why <br /> this is so—and why failure to do so will require reversal upon appeal—as follows: <br /> Upon enacting regulations, an agency is bound by them. Service v. <br /> Dulles, 354 U.S. 363, 388, 77 S. Ct. 1152, 1 L. Ed. 2d 1403 (1957); accord <br /> Cherokee Nation of Okla. v. Norton, 389 F.3d 1074, 1078 (10th Cir. <br /> 3 <br />