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IBLA 96-90R, 96-91R <br />Second, it contends that the Board should have placed no reliance on <br />the State court decision because it was issued long after the 1999 II~ and <br />1995 CE~i decisions at issue. It asserts that it was not part of the rewLd <br />before either of those offices at the time their decisions were made and, <br />therefore, should not be a factor in detP*'*nin;ng whether or not II~ was <br />arbitrary, capricious, or abused its discretion in reaching its conclusion. <br />With regard to CSM's two assicgmients of error, the Tatums charge that <br />the first is fi mrt?mentally wrong on the law. They assert that O~1's first <br />a,-rnmwnt lacks merit because even if Q4~f were wrrect that the relevant <br />regulation is violated only when an operator fails to pay full compensation <br />to a hGmeowner for subsidence damage, "a point the Tatums adamantly <br />dispute," BRI had failed to provide any compeivsation to the Tatums at the <br />time of the informal review decision. (Opposition at 5.) The Tatums claim <br />that CSM's sewrbd argument is inwnsistent with the first, ignores the fact <br />that the administrative record wntains ample evidence aside from the state <br />court decision in support of the Tatums' position on subsidence, and that <br />the Regional Director had before him at the time of his informal review <br />essentially the same material evidence as that produced in the state wort <br />proceeding. <br />We must reject CH~I's position that, because the Tatums received <br />~~ dtiOn for subsidence as a result of the 1997 State wort decision, <br />there was no violation of 2 Colo. Code Regs. § 4.20.3(2)(c) (1991). The <br />record shows that at the time IMG concluded its technical evaluation in <br />this case subsidence had caused material damage to the Tatums' house. That <br />fact established a violation of 2 Colo. Code Regs. § 4.20.3(2), and we <br />reject AI's contention to the wntrary. The regulation wntinues by <br />listing three bases for rectifying ttie violation: (1) restoration, <br />rehabilitation, or removal and replacement of the structure; (2) purchase <br />of the structure for fair market presubsidence value; or (3) compensation <br />of the owner of the structure in full amount of the diminution in value <br />resulting frcen subsidence. There is no evidence that the violation had <br />been rectified at the time LIB wncluded its evaluation. <br />OSM states ti~at the Board must clarify its ruling because othenrise <br />C6M, in response to our order to take appropriate action, will wzxhict an <br />inspection as required by 30 C.F.R. § 842.11, and if it finds no violation <br />exists, no enforcement action can be taken. As the Tattuns note; issuance <br />of a notice of violation establishes a record for the operator's history of <br />violations which is relevant for ne 't suspension or revocation and civil <br />penalty c~utation. Whether such a notice of violation would be <br />immediately subject to vacation because of BRI's payment to the Tatums is <br />not an issue before us. <br />Turning to (SS's sewnd ground for rewnsideration, OSM asserts that <br />the Board erred in considering the State wort decision because it <br />5 <br />