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Page 11 <br />~51 Interior Dec. 286 <br />(Cite as: 151 Interior Dec. 286, *298, 2000 WL 1740340, **10 (D.O.I.)) <br />0.41 IBLA at 100; Pittsburg & Midway Coal Mining Co. v. OSM, 132 IBLA 59, 74, 102 <br />Z.D. 1, 9 (1995); Ronald Maynard, 130 IBLA 260, 266 (1994). <br />**11 A person challenging an OSM decision not to order a Federal inspection or <br />`ake Federal enforcement action in response to a citizen's complaint, because <br />the State regulatory authority's response was appropriate or showed good cause <br />for not taking action, bears the burden of establishing error in OSM's decision. <br />Morgan Farm, Inc., 141 IBLA at 100; Ronald Maynard, 130 IBLA at 266. In order to <br />~o so in this case, the Tatums must show that DMG's action in response to the <br />TDN was arbitrary, capricious, or *299 an abuse of discretion. Appellants are <br />~learly incorrect in their assertion that it is not their "responsibility to <br />rove the mine DID cause the damage - the mine should prove that they didn't." <br />(SOR 96-91 at 9.) <br />A. IBLA 96-90 <br />We turn first to the appeal (IBLA 96-90) relating to Violation 1 of the TDN <br />r~oncerning appellants' water well. <br />I [2] Appellants argue that the loss of their water supply constitutes a <br />violation of section 720(a)(2) of SMCRA, 30 U.S.C. § 1309a(a)(2) (1994), and 30 <br />=.F.R. § 617.41(j), and their State equivalents. [FN4] Section 720(a) of SMCRA <br />provides, in relevant part, that: <br />Underground coal mining operations conducted after October 24, 1992, shall <br />iomply with * * * the following requirements: <br />******* <br />(2) Promptly replace any drinking, domestic, or residential water supply <br />rrom a well or spring in existence prior to the application for a surface coal <br />mining and reclamation permit, which has been affected by contamination, <br />~3iminution, or interruption resulting from underground coal mining operations. <br />30 U.S.C. § 1309a(a) (1994). To the same effect is 30 C.F.R. § 817.41(j) The <br />applicable State regulation, 2 Colo. Code Regs. § 4.05.15 (1991), specifically <br />brovides, in pertinent part, that: <br />Any person who conducts * * * underground mining activities shall replace <br />the water supply of any owner of a vested water right which is proximately <br />injured as a result of the mining activities in a manner consistent with <br />applicable State law. <br />Our initial inquiry is whether or not the well in question constitutes a <br />"drinking, domestic, or residential water supply" within the *300 meaning of <br />?MCRA, because, even if the record shows a diminution of the water supply, BRI <br />is only liable if the water supply is subject to replacement. <br />~ Under the regulations at 30 C.F.R. § 701.5, the phrase "drinking, domestic, or <br />residential water supply," as used in 30 U.S.C. § 1309a(a)(2) (1994), is defined <br />s <br />water received from a well or spring and any appurtenant delivery system <br />khat provides water for direct human consumption or household use. Wells and <br />Jprings that serve only agricultural, commercial or industrial enterprises are <br />not included except to the extent the water supply is for direct human <br />Copr. m West 2001 No Claim to Orig. U.S. Govt. Works <br />