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Page 17
<br />X51 Interior Dec. 286
<br />'(Cite ae: 151 Interior Dec. 286, *306, 2000 WL 1740340, **17 (D.O.I.))
<br />'going along for the ride."
<br />~ Following completion of briefing in the case, the Tatums filed with the Board
<br />on February 26, 1998, a supplemental exhibit, designated by them as Exhibit A-
<br />~5, in support of their position that mine subsidence caused damage to their
<br />pome and that OSM acted improperly in finding DMG's response to the TDN to be
<br />appropriate. That exhibit is a copy of a decision issued on December 1, 1997, by
<br />~he District Court, County of Las Animas, Colorado, in the matter styled James
<br />(Jim) Tatum and Ann Tatum v. Basin Resources, Inc., No. 92 CV 127. Therein,
<br />District Judge Jesse Manzanares found, inter alia, that
<br />[e]vidence at trial established that extensive underground coal mining
<br />operations were conducted near, and under the plaintiffs('] property line and
<br />within 300 feet of their residence. Subsidence was evident in various locations
<br />on the Tatum property, including the railroad tracks running through *307 the
<br />~atum property, and a sink hole near the Tatum residence. [FN7] The Tatum
<br />esidence was considerably damaged by the subsidence, which was caused by the
<br />mining operation.
<br />(Decision at 4.) The Judge awarded the Tatums compensatory damages for the
<br />diminution in value of their property.
<br />In an order dated August 17, 1999, this Board directed the Office of the
<br />solicitor to respond to Exhibit A-15 within 30 days of receipt of that order.
<br />fiver 60 days later, on October 25, 1999, the Board received a request from
<br />counsel for OSM seeking "an extension of time, consisting of 3 days, until
<br />Monday, October 25, 1999," in which to file a response to the Board's order. On
<br />~ctober 29, 1999, the Board received a request from counsel for a second
<br />xtension of time to file, this time "until Wednesday, October 27, 1999." The
<br />Board received a third request for extension of time from counsel on November 1,
<br />1999, seeking an extension to file "until November 3, 1999." Counsel did not
<br />~ile any response to our order.
<br />By order dated November 12, 1999, the Board denied the requests for extension
<br />nd ruled that any submission made by counsel in response to August 17, 1999,
<br />rder after the date of our November 12, 1999, order would not become a part of
<br />the record in this case.
<br />**18 The evidence of experts for the State and OSM tends to establish that
<br />oomething other than subsidence, although there is no agreement as to what,
<br />caused the structural damage to the Tatums' house. The Tatums' experts, on the
<br />ather hand, appear to agree that there is little explanation for the damage
<br />>ther than subsidence.
<br />However, the Tatums have also presented a copy of Judge Manzanares' decision
<br />-vhich was rendered following a 6-day hearing in April 1997 during which he heard
<br />~~he testimony of "approximately twenty-eight (28) witnesses and received over
<br />one hundred (100) exhibits into evidence." (Exh. A-15 at 1.) OSM has not timely
<br />esponded to a direction to address the Judge's decision. In his decision, the
<br />~udge found that subsidence was the cause of "considerable" damage to the
<br />~atums' house.
<br />As stated above in the discussion concerning IBLA 96-90, under the regulations
<br />governing TDN's, an action or response by the State regulatory authority that is
<br />.iot arbitrary, capricious, or an abuse of discretion under the State program is
<br />considered "appropriate action" to cause a *308 violation to be corrected or
<br />Copr. m West 2001 No Claim to Orig. U.S. Govt. Works
<br />
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