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r
<br />IBli- 9b-90, 96-91
<br />James Pendleton, an ~+g+*+m~'+M geologist, as well as of Og'd's experts.
<br />Michael F. Rosenthal, Dr. Jesse L. daft, and Dr. ICeNral R. Rohli, all of
<br />WhaR illSpeCted appellatltS' ha;ae on one ar more ooCa81Q1S.
<br />Pa~dleton relied on the fact that there was rn damage anywhere
<br />along the foundation of the house, either in the c~crete walls affi
<br />CB[letit plaster coating dcl the walls of the basHnait or in the rubble
<br />stone foundation, and Chat such darage was necessary to establish that
<br />the horse had been subjected to mine subsidence. 'This was subsCantiated
<br />by Rohli. (KOhli Report at 1.) Lilccwise, Rosenthal. stated that he had
<br />"never observed actual subsidence damage to a structure where there has
<br />been m famdaticm involvement," thus zuling cut mine subsi,drrce as the
<br />cause of the damage Co appellants' liaise. (Manorarri<mm to File, dated
<br />PIS. 16, 1995.)
<br />In addition, Rosenthal note3 that the "worst case subsidence [cxm-
<br />puter) modeling" he had done also indicated that mine subsidence aas not
<br />the Cause of any of the damage to appellants' horse. (MenorarrLa~t to File,
<br />dated Ppb. 16, 1995 (referring to Trip Report at Z).) 'This was supported
<br />by Qaft's own cxnputer nndeling. (CYaft Report at 4-5, 7.)
<br />nm ??~*+ts contend flint 06M erzed in dec~;n;*_~ to initiate a Fhd-
<br />eral irnrestigation and talc= Federal enfor~oan~nt action because HRI's
<br />tarlesgrata~d mining operations caused rtateri.al damage to their home. (S~t,
<br />ffi,A 96-91, at 1, 7, 12, 14-15.) 1Yley argue that the three professional
<br />~*~*r hired by them, rarity, Attwcoll, and Reins, as well as Vigil,
<br />the Las Animas County Building Inspector, each support the mnclusien that
<br />the "m3jori.ty" Of the damage evident in their house resulted frrxn mine sub-
<br />sidence. Id. at 1. 'They state that "[t]he stwdy of the cause and effect
<br />of opal mining is not exact," but that "(n]o other reasm'~able explanation
<br />can e~lain what has happened to our bare + + +." Id. at 2. TYais, aPPel-
<br />lants conclude that BRI was required to repair the damage to their liaise or
<br />oa~sate them for that damage. ~, at 12, 14.
<br />Gerity believed that subsidence could have caused the damage to
<br />appel]ants' haLSe because there was ne verified distance frtxn the mine
<br />woritings to the ha;se. (Marora[d~an to Tattmts frtm Gerity, dated Dec. 27,
<br />1994, at 3 ("My criticisn of ms's] repcgts is they did not indicate
<br />that they + * *•eliminated the possible [subsidence] effects because of
<br />the unsubstantiated distance").) He later stated, after further reviewing
<br />IMG's files and reference information aryl again visiting the site, that
<br />"(t)here is definitely the possibility of mine subsidence, and this sub-
<br />sidence could have affected the stability of the house." ("Report on the
<br />Potential Causes of Subsidence of the Solitario Ranch Horse," dated January
<br />1995 at 2.) Geri.ty attributed this possibility first to the fact that sub-
<br />sidence "does occur" even with limited extraction roan and pillar mining:
<br />"Over time, the mine roof may fail, the pillars may fail, or the mine floor
<br />mayr fail. Failure is often accelerated by water in the mine, aff~*; ~+
<br />the stabil1ty of the rocks, an8 failure can also ocau when the floors are
<br />soft." 1d, at 3; ~ Manorand~an to Tatums'from Gerity, dated July 13,
<br />1995, at.2-3. ..
<br />•' 151 »3SA 304 .•~ ~ 1
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