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<br /> <br />D. Plaintiffs were denied an cpportunity to <br />controvert evidence presented at the prior pcrticns of the <br />hearing. which plaintiffs did not attend (at 4). <br />c. Gefendants' counterclairt fcr the penalty <br />was barred by a statute of limitations (at 5-6). <br />10. At the February 15, 1983 oral argument on summary <br />judgment motions, indeed fcllowing the apparent conclusion <br />of the argument (transcript at 25), counsel for plaintiffs <br />asserted for the first time that, subsequent tc the board <br />decision challenged by plaintiff's complaint. the board <br />wrongfully refused to issue a permit for plaintiffs' oper- <br />ation (transcript at 26-28). <br />11. Plaintiffs' moticn and "Mertorandum Brief in Sup- <br />port of Motion to Alter cr Amend Judgrtent•" filed on cr <br />about March 1, 1983• raised for the first tine in the litiga- <br />tion the fcllowing issues: <br />a. Notice given plaintiffs for the September <br />23. 1991 hearing was defective under the APR (at 4). <br />b. Gefendants failed to respond to a September <br />1981 request for inferrtaticn frcm. plaintiffs (at 4). <br />c. Gefendants' inspections of plaintiffs' <br />mina site violated beard regulations (at 4). <br />d. The board had prejudged plaintiffs' case <br />and therefore denied them a fair hearing (at 4). <br />e. Material issues of fact were raised con- <br />cerning (at 6): <br />1) economic advantage: <br />2) amount of environmental damage; <br />3) whether any reclamation had occurred; <br />4) whether plaintiffs diligently sought <br />a permit after notification; and <br />5) whether plaintiffs continued to <br />mine after notification. <br />Because in defendants' view these and other issues in <br />-4- <br />