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IBLFi 96-90R, 96-91R <br />Sernna, it contends that '.he Board should have placed m reliance On <br />the State court decision be-mow^e it was issued lcmg after Lhe 1994 Ltd and <br />1995 C3~ decisions at issue. It asserts that it eras not part of the record <br />before either of those offices at Lye time their decisions were made and, <br />therefore, should not be a factor in deteuaining whether or not ISlG was <br />arbitrary, capri^..ious, or abused i~s discretion in reac:lvzg its elusion. <br />With regard to O33's two assignments of error, the Tatums charge that <br />the first is fundamentally wroiuj on the law. 17~ey assert that CHd's first <br />argument lac} merit because even if C~3 were ~rrect that the relevant <br />regulation is violated only when an operator fails to pay full oottpensation <br />to a hceneowner• for subsidence damage, "a point the Tatums adamantly <br />dispute," 13Ft2 had fa;led to provide any co~~satian to the Tatums at the <br />bare of the informal review decision. (Opposition at S.) The Tatums claim <br />that 0~45's seocmd argimient is inorr.~sistent with the fL-st, ignores the fact <br />that the administrative re~rti ~ntains able evidence aside from the state <br />court decision ir. support of the Tatars' position on subsidence, an3 that <br />the Regional Director had before him at the time of his znfozma]. review <br />essentially the same material evidence as that pr~oed in the state court <br />proceeding. . <br />We must reject Oss's position that, because the Tatlffis received <br />cx~ez~sation for subsidence as a result of the 1997 State crnfft decision, <br />there was nn violation of 2 Colo. Oode Regs. 5 4.20.3(2)(c) (1991). The <br />record shows that at the flee It3"a concluded its technical evaluation in <br />this case subsidence had cau,.ed material damage to the Tatums' house. That <br />fact zstati,i;ahu? a violation of 2 Colo. Code Begs. § 4.20.3(2), arri we <br />reject O3~f's onntention to the contrary. The station ~ntisu:es by <br />listing three bases for rectifying the violation: (11 restoration, <br />rehabilitation, or removal anxt r~laoement of the structure] (2) pur~dtase <br />of the structure for :air aarket presubsidence value; or (3) r~oa~.+Ltio¢i <br />of the oHnier of the structure in full amount of the ~9+n;m~tipn ~ value <br />resultin7 frtm subsidence. There is rn evidence that the violation had <br />been rectified at the bate ~ concluded its evaluation. <br />O34 states that the Boarri aaut clarify its ruling because otherwise <br />03d, in respoc~se to our order to take appzopriate action, will conduct an <br />inspection as required by 30 C.F.R. ~ 842.11, a:r1 if it finds no violation <br />exists, no enforcement actial can be taken. AS the Tatlans note, issuance <br />of a entice of violati.a~ establishes a re~rd for the operator'6 history of <br />violati,cAis which is relevant for pearit suspension or revocatien ars3 civil <br />penalty ~nrtatia~n. Whether such a entice 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 CB~f's second grand for reoansideration, OSCt asserts that <br />the Board erred in considering the State ocrart decision because it <br />5 <br />