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ENFORCE28355
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Last modified
8/24/2016 7:35:41 PM
Creation date
11/21/2007 11:55:10 AM
Metadata
Fields
Template:
DRMS Permit Index
Permit No
C1981013
IBM Index Class Name
Enforcement
Doc Date
1/13/2000
Doc Name
JIM & ANN TATUM
From
US DEPARTMENT OF THE INTERIOR
Violation No.
TD1993020370005TV3
Media Type
D
Archive
No
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IBLA 96-90, 96-91 <br />LNG's June 5, 1995, Report, states at page 9: "Acoordirr~ to the <br />State Engineer's Office, a vested water right as it applies to the Tatum <br />wincinill well, could be either a permitted well or an adjudicated water <br />right, and the Tatwn well is neither." It r„rrhor state3 that in accor- <br />dance with State F'r~inaar's Office policy, an unpermitted aIld tIIladjudicated <br />well that has not been used for 10 years is considered abarr3m~ed. "'The <br />Tatum windmill well under' c!u-resit State F4~inoor's Office Fblicy, would <br />be considered abandoned * • *." 7.d. at 10. The recrord shnas that LNG <br />imlestigate3 the records in the State Fr~inc+ar's Office and was unable to <br />uncover any records showing that the well was permitted or that there was <br />any adjudication of the water rifts for the well. <br />The detP**++i*+~tion that appellants did not have a vested water right <br />served as the basis for LNG's conclusion that BRI was not required by sec- <br />tion 4.05.15 of 2 Colo. Code Begs. (1991) to replace the water supply in <br />appellants' well. Appellants have provide3,no,evidence.to the contrary, <br />asserting only that LNG's conclusion "is singly NOT ZIiE Lr,W." (SOR, IBIA <br />Appellants have failed to establish any error in LNG's (]erarm;natjpn <br />or in OSM's acceptance of that determination.. In his August 24, 1995, <br />decision the Regional Director stated that he concurred with the DFU's <br />decision not to initiate a Federal inspection or take Federal enforcerent <br />because LNG's response to the TLBQ was appropriate. We hereby affirm that <br />decision, as modified, for the follaaing reasons. <br />Lh~des the regulations governir~ TLHJ's, an action or response by the <br />State regulatory authority that is not arbitrary, capricious, or an abuse <br />of discretion under the State program is considered "appropriate action" <br />to cause a violation to be corrected or "good cause" for failure to do so. <br />30 C.F.R. § 842.11(b)(ii)(B)(2). Those regulations further state that <br />"[a]ppropriate action includes enforoem=nt or other action authorized under <br />the State program to cause the violation to be corrected." 30 C.F.R. <br />§ 842.11(b)(ii)(B)(3). Tn this case, there was no enforcetient or other <br />action by LNG to cause the violation to be corrected. The reason is that <br />II~'G found no violation. Accordingly, OSM sheuld have concluded that LNG's <br />response constituted "good cause" for failure to take action because, in <br />acCOrdande with 30 C.F.R. § 842.11(b)(ii),(B)„(4)(i),.undes the State program <br />the violation did not exist. See arty r,- & Moses 'l~a~ant, 135 IDLA 217, <br />227-28 (1996); Patricia A_ Marsh, 133 IBIA 372, 376-77 (1995). <br />B. 1BTA 96-91 <br />[3] Appellants have argued that the damage to their home constituted <br />a violation of section 720 (a) of SM12P,, and 30 C.F.R. § 817.121(c)(2), affi <br />... .. c; ;: ~.:... .. <br />F t .._.. ,.. .. <br />. ,. o:. ,:,;.;r ..... <br />~~ 151 IBIA 302- <br />
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