2012-08-27_REVISION - C1981008 ‎(2)‎

• Permit No: C1981008
• IBM Index Class Name: Revision
• Doc Date: 8/27/2012
• Doc Name: Order Designating Appeal Record 2010 CV 548
• From: District Court, Montrose County Colorado
• To: Parties
• Type & Sequence: PR6
• Email Name: DAB
• Media Type: D
• Archive: No

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DISTRICT COURT, MONTROSE COUNTY, COLORADO
Court Address: 1200 N. Grand Avenue
EFILED Document
CO Montrose County District Court 7th
Montrose, CO 81401
Telephone: [phone]
Filing Date: Aug 27 2012 04:51PM MDT
Filing ID: 46125214
Review Clerk: N/A
FRANK MORGAN, MARY LOU MORGAN,
JOELLEN TURNER, AND MICHAEL MORGAN,
Plaintiffs,
V.
❑ COURT USE ONLY ❑
WESTERN FUELS COLORADO, LLC, a Colorado
limited liability company, and STATE OF
COLORADO, by and through the DEPARTMENT OF
Case Number: 2010 CV 548
NATURAL RESOURCES, DIVISION OF
RECLAMATION, MINING & SAFETY and MINED
Division:
LAND RECLAMATION BOARD,
Defendants.
ORDER DESIGNATING APPEAL RECORD c 6 ,, 5-4
THE COURT, having reviewed the designations of record filed by the parties, the
objections Plaintiffs' designation filed by Defendants, the two motions to strike filed by
Defendants, Plaintiffs' response /reply, the applicable law and the history of the case, the Court
finds, concludes and orders as follows:
The Court generally agrees with the reasoning of Plaintiffs. If Defendants' argument
were accepted, then the Court could not review actions taken by Defendants to exclude evidence
or disregard evidence, no matter how arbitrary or contrary to law, simply because the evidence
would not have been considered by Defendants. The Court does not agree with Defendants'
interpretation of the law in this regard. Although judicial review is generally based on the record
of the proceeding below, the Court is also charged with making sure that constitutional and
statutory rights have been protected, and that procedural fairness has been afforded. C.R.S. 24-
4 -106 (7). Failure to consider evidence can be grounds for reversal of an agency action.
Platinum Properties Corp. v. Colorado Bd. of Assessment Appeals, 738 P.2d 34 (Colo. App.
1987). In addition, the record shall consist of a number of items whether specifically considered
by the agency at a hearing or not. C.R.S. 24 -4 -106 (6).
IT IS, THEREFORE, ORDERED that:
ID