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In light of this high bar, it should not be surprising that the O'Briens are <br /> skeptical of the Division staffs "wait and see" approach, when the plan <br /> conspicuously (and the O'Briens' believe vindictively) contains no provision for <br /> topsoil on O'Brien property that has been damaged severely by past mining <br /> activities. It is very difficult to believe that the resulting vegetative cover will be "at <br /> least equal to" the adjacent, non-mined O'Brien property. But even if reasonable <br /> persons might have differing predictions, it is important to recognize that the job of <br /> the Board was not to try to reach a prediction as to the likelihood that the proposed <br /> plan would succeed. Rather, the Board's job was to determine whether additional <br /> topsoil on the O'Brien property would give the proposed plan a better chance to <br /> succeed. Unless the Board could honestly conclude that topsoil would not improve <br /> the chances of success, Rule 3.1.10(4)'s mandate that the "plan shall provide for the <br /> greatest probability of success" is simply not satisfied. <br /> III. EVIDENCE OF THE DEPTH AND QUALITY OF TOPSOIL <br /> ON NON-MINED O'BRIEN PROPERTY <br /> At the September 17th hearing in this Matter, neither party had perfect and <br /> conclusive evidence comparing the quality and depth of topsoil on O'Brien property <br /> that exists after the Operator's mining activities with that which naturally exists on <br /> parts of the O'Brien property that have never been mined. It was obvious and <br /> undisputed that the current state of vegetation on O'Brien property lying generally <br /> North of Pond 2 was woefully deficient. See Exhibit A (bottom photo). But the <br /> Operator argued that this was due to flooding years ago that deposited fine-grained <br /> silt on O'Brien property that was preventing the type of robust revegetation that <br /> the Rules require. <br /> First, it is important to note that the Operator bears the burden of proof under <br /> DRMS Rule 2.8.1(1). Thus, to the extent that the Board found the evidence <br /> insufficient to compare the naturally-occurring O'Brien topsoil with the post-mining <br /> O'Brien topsoil, these insufficiencies should have been held against the Operator— <br /> not the O'Briens. <br /> Second, as noted above, a proper interpretation of the Mr. Lennberg's testimony <br /> about the 2023 photograph in Exhibit A reveals that this photograph is actually <br /> extremely strong evidence of the vibrant and robust grasses that naturally grow in <br /> the excellent topsoil that naturally existed on the O'Brien property prior to mining <br /> activities. Unfortunately, whether intentional or not, Mr. Lennberg's testimony <br /> 7 <br />