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in evaluating whether or not DMG was arbitrary, capricious, or <br />abused its discretion in reaching its conclusion.° <br />Clearly, there was a factual dispute in 1995 when DMG <br />reaffirmed their conclusion that no violation existed.s There <br />was recent damage to the Tatum home for which compensation had <br />not been paid. The operator felt that this damage was not caused <br />by-subsidence resulting from mining, while the Tatum's experts <br />felt that subsidence was the likely -cause. The question is not <br />whether others might come to a; different conclusion (as the <br />Colorado State court later did) but whether or not DMG had a <br />reasonable basis for their decision that was not arbitrary <br />capricious or an abuse of discretion. A review of the record <br />shows that the State conducted a reasoned review using a <br />qualified expert. That review was concurred in by three OSM <br />experts, each looking at the issue independently. The views of <br />the Tatum's experts were given consideration by DMG. Alternative <br />causes of the damage were discussed. After an exhaustive <br />investigation that spanned months and included several visits to <br />the Tatum home, DMG concluded that mine-related subsidence was <br />not the cause of the damage to the Tatum home. OSM's experts <br />agreed with this conclusion. The OSM Regional Director, faced <br />with these facts, simply could not conclude that the State's <br />response was arbitrary and capricious. Because the State's <br />response was reasoned and thoughtful, and based on all of the <br />evidence available, it was not an abuse of discretion. <br />` If this case is to be decided on the record as it exists <br />at present rather than the record available to DMG and OSM in <br />1995, then the present record should also include an October 15, <br />1998, memorandum from DMG. (This document is attached as Exhibit <br />"1".) In this memorandum, DMG reviewed the survey data of <br />subsidence monument elevations along the railroad which was part <br />of the State court case record. Also in this memorandum, DMG <br />reaffirms its conclusion that mine-related subsidence was not the <br />cause of the damage to the Appellant's home. <br />S The TDAF~at issue in this appeal did not identify damage <br />to the Tatum home as a violation in violation 1 of 3 even though <br />a reference to rule 4.20 was included. The only aspect of the <br />TDN relating to Rule 4.20 was the issue of public notice which <br />DMG pointed out had been corrected .with a State-issued notice of <br />violation earlier in 1993. While much of the subsequent review <br />in response to the Tatum's December 1994 request for informal <br />review of OSM's initial decision focused on the question of <br />whether or not the Tatum's home had been damaged by subsidence, <br />that issue was never part of the TDN for which DMG's response is <br />being judged in this decision. <br />6 <br />