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The record belies Defendants' position, and demonstrates that the Board refused, at every <br />turn, to consider Cotter's evidence of impossibility. Board Member Randall stated, "I just don't <br />think its proper for the Board to accept that evidence [of impossibility]." AR:0229:21- 0230:1. <br />Board Member Paulin confirmed the Board's position that Cotter could not offer Slides 11 <br />through 20 as evidence of impossibility. AR:0238:2 -8. Board Member Paulin also explained the <br />Board's position that any proof of impossibility was "for the district court to decide." <br />AR:0255:17 -23. The Division's attorney advised the Board that it was not required to accept <br />even an offer of proof (AR:0267:13 -16), and the Board followed this advice by holding, "the <br />offer of proof regarding impossibility will not be admitted today." AR:0270:10 -14. <br />In their Joint Answer Brief, Defendants do not dispute the relevance and materiality of <br />Cotter's evidence of impossibility, but simply argue, contrary to the clear record, that the Board <br />actually considered the evidence. The portions of the record cited above compel the opposite <br />conclusion — the Board refused to consider any evidence of impossibility or even allow an offer <br />of proof. <br />By refusing to consider Cotter's evidence of impossibility, and denying Cotter's offer of <br />proof, the Board acted contrary to law and abused its discretion. For that reason, the December <br />2010 Order should be declared invalid and set aside. <br />18 <br />