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would make every attempt to avoid the state court decision if he were allowed the opportunity. <br />Remand, then, would almost certainly lead to a second appeal by the Tatums, which would present <br />precisely the same factual issue that this Board has already resolved in their favor. In short, the <br />procedure that OSM suggests would do nothing more than delay the agency's ultimate obligation <br />to take enforcement action against BRI or else convince Colorado regulators to do so. <br />Viewed from a second perspective, OSM's argument turns on an exaggerated and distorted <br />interpretation of the role of the state court decision in the Board's resolution of this appeal. The <br />Tatums aze entitled to prevail in this case not simply because they won in state court - as OSM <br />suggests -but because they have consistently presented the more persuasive physical evidence and <br />expert opinion testimony on the issue of whether subsidence caused the damage they incurred. For <br />whatever reason, the Regional Director erred in failing to recognize the more persuasive character <br />of the Tatums' evidence. The state court weighed matters correctly and ruled definitively for the <br />Tatums. The Board, too, found that "the present record establishes by a preponderance of the <br />evidence that a violation did exist." Jim & Ann Tatum,151 IBLA at 308. It is hazdly surprising that <br />the Board went on to note that the state court reached the same conclusion about essentially the same <br />evidence. Far from establishing error, the Board's statement is nothing more than a prudent <br />observation that a more sophisticated and neutral fact-finder than the Regional Director arrived at <br />the same judgment on the evidence as the Board did. <br />8 <br />