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The fact that a reasonable process was used in reaching a <br />reasonable decision is not altered by the fact that a State court <br />judge reached a different conclusion almost three years later in <br />a civil court case between the Appellants and in which he <br />considered evidence that was not before DMG when the DMG reached <br />its conclusion and applied a different legal standard. <br />Information developed subsequent to OSM's evaluation of the <br />State's decision should not be considered by the Board in <br />concluding that OSM erred unless it -demonstrates that DMG acted <br />in an arbitrary and capricious. manner in evaluating the <br />information available to them at that time.b <br />ArQUment in Favor of Granting a Stav <br />The factors that the Board examines when deciding to grant <br />or deny a stay are found at 93 C.F.R. § 4.21(b). The factors are <br />as follows: <br />(i) The relative harm to the parties if the stay is <br />granted or denied, <br />(ii) The likelihood of the appellant's success on the <br />merits, <br />(iii) The likelihood of immediate and irreparable harm <br />if the stay is not granted, and <br />(iv) Whether the public interest favors granting the <br />stay; . <br />6 OSM is aware that the Board may review an appeal "de <br />novo". U.S. Fish & Wildlife Service, 72 IBLA 218, 220 (April 25, <br />1983). In addition, OSM is aware that the Board, using its de <br />novo review power, is not limited to the issues presented in the <br />case below. P&K Coal Co., Ltd. v. Office of Surface Mining <br />Reclamation and Enforcement, 98 IBLA 26, 31 at footnote 9 (June <br />2, 1987). OSM-is concerned, however, about the precedential <br />effect of the Board's vacation of OSM's informal review decision. <br />This concern stems from the fact that the evidence that the Board <br />appears to be relying on in deciding to vacate the Regional <br />Director's decision (i.e., Judge Manzanares' 1997 decision) was <br />not in existence when the OSM Regional Director made his <br />decision. In essence, if the Board is reversing OSM's informal <br />review decision, OSM asks the Board to reverse that decision only <br />on the record that was available to OSM at the time the decision <br />was made. OSM humbly and respectfully requests that the Board <br />clarify its decision in this regard. <br />7 <br />