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-~3'r~ve made a different determination himself, given the same <br />facts. OSM believes that it is likely that the Board would have <br />affirmed the decision of the Regional Director had the Board <br />applied the "arbitrary and capricious" standard. <br />Second, as stated above, OSM asserts that the Board's <br />conclusion that subsidence damage alone, in and of itself, is a <br />violation of the State program, is in error. As pointed out by <br />OSM on pages 2-5 of its Petition, merely causing subsidence <br />damage, by itself, is not a violation of the State program. <br />Again, OSM believes that if the Board corrects its decision in <br />this regard, the Board will change its decision and will affirm <br />the decision of the Regional Director. <br />Third, and finally, OSM believes that the Board committed an <br />error of law by not dismissing the Appellants' appeal as moot. <br />Because the Appellants have been compensated for the damage to <br />their home, there is currently no violation of the Colorado State <br />program that OSM could enforce. <br />OSM believes that correcting the three errors of law noted <br />above is needed in order to achieve a just outcome in this <br />matter. OSM notes that there is legal precedent for the Board to <br />reconsider its decision on this basis as the Board has, in at <br />least two prior cases, granted reconsideration to correct a <br />8 <br />