Laserfiche WebLink
In this case, it is clear that the Appellants have been <br />fully compensated for the subsidence-related damage to their <br />home. Since that is the case, there has been no violation of the <br />State program. A showing that the violation does not exist under <br />the State program constitutes "good cause" for the State's <br />failure to take appropriate action. See 30 C.F.R. <br />§ 842.11 (b)(1)(ii)(B)(4)(i).' Since good cause has been shown, <br />OSM's decision to not order a Federal inspection of the mine is <br />correct and should be affirmed. `• <br />Error 2 <br />The Board concluded, at 151 IBLA 286, 308, that DMG's <br />determination that no violation of 2 Colo. Rule 4.20 existed is <br />not supported by the "present record" and is therefore arbitrary, <br />capricious, and an abuse of discretion. Therefore, the Board <br />vacated the Regional Director's 1995 decision. Id. In doing so, <br />the Board relied upon the December 1, 1997, decision of Judge <br />Jesse Manzanares in a Colorado State civil court case in which he <br />found that subsidence had caused damage to the Tatum home and <br />awarded damages. Id. OSM humbly and respectfully suggests to <br />the Board that since Judge Manzanares' decision was issued long <br />after the DMG and OSM decisions in 1994 and 1995 at issue in the <br />Board's decision, it was not part of the record before either DMG <br />or OSM when those decisions were made and should not be a factor <br />operator's violation of a provision in a State or Federal program <br />has a cause of action for damages in State court pursuant to the <br />State's equivalent to section 520 (f) of SMCRA (30 U.S.C. <br />§ 1270(f)). National Wildlife Federation at 464. This provision <br />in SMCRA provides for "citizen" suits against coal mine <br />operators. P_ citizen suit for damages has occurred in this case <br />as the Appellants have sued the coal mine operator, in State <br />court, for damages. The State court, pursuant to the State <br />program, has determined the extent of the operator's culpability <br />and liability--and has ordered that money damages be paid to the <br />Appellants. The operator has made the required payment. The <br />Secretary, therefore, has no basis for finding that the <br />Appellants have not been compensated to the extent required by <br />State law. <br />' As correctly noted by the Board at 151 IBLA 286, 308, the <br />OSM Albuquerque Field Office should have concluded that the State <br />had "shown good cause" not that it had "taken appropriate <br />action." OSM wishes to thank the Board for noting this important <br />distinction. <br />5 <br />