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151 Interior Dec. 286 <br />(Cite as: 151 Interior Dec. 286, *301, 2000 WL 1740340, **12 (D.O.I.)) <br />Page 13 <br />because, under 2 Colo. Code Regs. § 4.05.15 (1991), replacement is only required <br />for a "vested water right." (Answer at 14.) OSM notes that DMG had already <br />determined, as set forth in its June 6, 1995, letter, that appellants had no <br />such right in the water from their well and that, since it was reasonable on its <br />'face, DFO was entitled to defer to that interpretation. (Answer at 14-15, citing <br />Pittsburg & Midway Coal Mining Co. v. OSM, 132 IBLA at 89-90, 102 I.D. at <br />X16-17.) OSM asserts that, absent a. vested water right, DMG properly decided that <br />BRI had not violated the State regulation. <br />**13 *302 DMG's June 5, 1995, Report, states at page 9: "According to the <br />State Engineer's Office, a vested water right as it applies to the Tatum <br />(windmill well, could be either a permitted well or an adjudicated water right, <br />and the Tatum well is neither." It further stated that in accordance with State <br />Engineer's Office policy, an unpermitted and unadjudicated well that has not <br />(been used for 10 years is considered abandoned. "The Tatum windmill well under <br />current State Engineer's Office Policy, would be considered abandoned * * *." <br />Id. at 10. The record shows that DMG investigated the records in the State <br />(Engineer's Office and was unable to uncover any records showing that the well <br />was permitted or that there was any adjudication of the water rights for the <br />well. <br />The determination that appellants did not have a vested water right served as <br />(the basis for DMG's conclusion that BRI was not required by section 4.05.15 of 2 <br />Colo. Code Regs. (1991) to replace the water supply .in appellants' well. <br />Appellants have provided no evidence to the contrary, asserting only that DMG's <br />(conclusion "is simply NOT THE LAW." (SOR, IBLA 96-90, at 8.) <br />Appellants have failed to establish any error in DMG's determination or in <br />OSM's acceptance of that determination. In his August 24, 1995, decision the <br />~egional Director stated that he concurred with the DFO's decision not to <br />initiate a Federal inspection or take Federal enforcement because DMG's response <br />to the TDN was appropriate. We hereby affirm that decision, as modified, for the <br />following reasons. <br />Under the regulations governing TDN's, an action or response by the State <br />regulatory authority that is not arbitrary, capricious, or an abuse of <br />discretion under the State program is considered "appropriate action" to cause a <br />~iolation to be corrected or "good cause" for failure to do so. 30 C.F.R. § <br />842.11(b)(ii)(B)(2). Those regulations further state that "[a]ppropriate action <br />iincludes enforcement or other action authorized under the State program to cause <br />jthe violation to be corrected." 30 C.F.R. § 842.11(b)(ii")(B)(3). In this case, <br />there was no enforcement or other action by DMG to cause the violation to be <br />corrected. The reason is that DMG found no violation. Accordingly, OSM should <br />~ave concluded that DMG's response constituted "good cause" for failure to take <br />action because, in accordance with 30 C.F.R. § 642.11 (b)(ii)(B)(4)(i), under the <br />State program the violation did not exist. See Betty L. & Moses Tennant, 135 <br />~BLA 217, 227-28 (1996); Patricia A. Marsh, 133 IBLA 372, 376-77 (1995). <br />B. IBLA 96-91 <br />[3] Appellants have argued that the damage to their home constituted a <br />violation of section 720(a) of SMCRA, and 30 C.F.R. § 817.121(c)(2), and *303 <br />Copr. m West 2001 No Claim to Orig. U.S. Govt. Works <br />