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later on (months or years later) if the Operator was ultimately unable to achieve a <br /> level of revegetation that meets DRMS standards under its Rules. In response, the <br /> O'Briens pointed out that the plain text of DRMS Rule 3.1.10(4) is clearly <br /> inconsistent with this approach because it mandates that "[t]he revegetation plan <br /> shall provide for the greatest probability of success in plant establishment and <br /> vegetation development" (emphasis added). Since it is the "plan" that must "provide <br /> for the greatest probability of success," the "wait and see" approach suggested by <br /> Division Staff is not allowed under the rules. Simple logic dictates that, unless the <br /> Board could reasonably conclude that additional topsoil would not provide for a <br /> better probability of success, the proposed plan was, by definition, impermissible <br /> under Rule 3.1.10(4). <br /> But instead of ensuring that DRMS rules were scrupulously followed, the <br /> deliberations reveal that that the Board became distracted by two inappropriate <br /> lines of reasoning: 1) a belief that it is not the state's job to "makefl these two <br /> parties agree," but it is rather the parties' "responsibility to work this out;" and 2) a <br /> belief that the Board needed to simply "move on" because there may be <br /> opportunities to fix any deficiencies in the plan at a later date. <br /> As to the first rationale, it should not be a surprise that the parties have not <br /> reached an agreement because of the dollars involved. Testimony from the O'Briens' <br /> engineer indicated that it would be very expensive to add an adequate amount of <br /> topsoil to the part of O'Brien property that has been damaged by past mining <br /> activities. But despite the cost, the O'Briens maintain that this is exactly what is <br /> required by DRMS Rules. It should come as no surprise, however, that the Operator <br /> does not want to incur such a large expense. Due to these conflicting interests, a <br /> contested hearing was necessary. And the Board's job at such a hearing was to <br /> determine which party was correct under DRMS Rules. It was most certainly not, <br /> however, appropriate for the Board to lament being put in this uncomfortable <br /> position and to blame the parties for failing to agree. From the O'Briens' <br /> perspective, the only possible way to agree was to accept something far short of <br /> what DRMS Rules plainly require. And while it is true that it is not the Board's job <br /> to make the parties agree, the Colorado Supreme Court has made it clear (as <br /> discussed above) that it most definitely is the Board's job to decide whether the <br /> O'Briens are correct that the Revegetation Plan is inconsistent with the DRMS <br /> Rules. <br /> 5 <br />