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<br />Here, too, the Tatums were not alone in their argument to the Board. DMG forcefully <br />defended its cleaz statutory prerogative to vacate enforcement action at art}• tune prior to an <br />administrative adjudication by the Board. like the 1'atums, DMu pointed out that nothing in either <br />the Co]oradn statutes or regulations restricts DMG's authority to vacate enforcement action simply <br />because a coal operator has challenged the action. Subject to examination of the administrative <br />record that the Board ultimately files in this case, the Tatums assert that the evidence in the record <br />will show that UM(i has been vacating enforcement on occasion since the inception ofthe regulatory <br />program, v<ithout regard to whether an administrative proceeding is pending before the Roam.' <br />1n addition to DMG's arguments in favor of the Tatums' position, it is noteworthy that two <br />members u f the Board dissented tiom the majority view that UMG lacks authority to vacate its own <br />enforcement action. It is equally important to note the extremely odd natuue of the Board's ruling: <br />instead of holding that DMG lacks authority to vacate enforcement action whenever a pruccedutg <br />is pending before the Board, the Board held that DMCi lacked such authority only "in the cturent <br />matter." As a matter of ]aw, DMG either has authority to vacate its own enforcement action or it <br />does not. Although the possibility exists That DMG may abuse its authority from time to time, the <br />agency's basic authority to vacate enforcement action does not vary on a case-hy-case basis. The <br />Board's attempt to turn DMG's statutory authority on and off like a water tap is clearly arbitrary and <br />capricious. <br />At a minimum, the dissent among Board members and the odd nature of the majority's <br />reasoning establish all the more strongly that the Talums have raised a second issue which is <br />~ Rather than belabor the merits of the case at this early' juncture, the Tatums <br />respectfully refer the Court to those portions of the administrative record that encompass the written <br />arguments DMG and the Tatums submitted to the Boazd. <br />15- <br />