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0c/06/2008 18:26 3032315360 REG SOLICITOR DENVER PAGE 05/09 <br />- ~ IVV, 0410 r, Sri u <br />FEB. 6,2008 4:18PM USDI IBLA <br />y <br />zaLA coos-24 <br />ate action or good cause, 30 C.F.R. § 842.11 (b) (7.) (ii) (8) (~) . "CTood <br />for appropri <br />cause" fs defined in the regulations to mean several things, including chat "[u7nder <br />the State pmgzam, the possible violation does not exist." 30 C.F.R <br />§ 842.11(ly) (~) (ii) (B) (4) (t~. The standard for deternnining both "appropriate aedon'' <br />and "good cause" is whether the State agenc~s action or response to the TDN is <br />arbitrary, capricious, or an abuse of discretion under tk~e Smte progxam, 30 C.F.R. <br />§ 842.11(10 (1) (ii)(B) (2), Marion DoCTcs, Inc. v. OSM, 7.68 I$IA 47, 5i -52 (2006). <br />ny letter dated September 4, 2007, enclosing ARMS' response, DFD informed <br />Ann Tatum that it had determined that DBMS' response to the TDN established good <br />cause for not taking Ax~y further action, and that, therefore, OSM would trot be talting <br />any further action. <br />By letter dated September 10, 2007, Ann Tatum sought it~forrnal review by ~e <br />Regional Director of DFD's det;erminatlon. She argttied that the named permittee for <br />the pemctit should be Westmoreland. <br />Isi b3.s decision dated Oc~obex 12, 2007, the RegionaY Director provided a <br />derailed explanation for afflzmis~g DPD's September 4, 2007, determination. xe <br />~fovnd that BRI had demonstxated that BRI was is compliance with Colorado <br />Role 2.08.6, and, therefore, the alleged violatiom~did not exist. <br />Ann Tatum filed a timely appeal on behalf of her husband, Jim Tatum, and <br />herself. That appeal challenged the AeRional .Director's decision Daly as it relates to <br />the permit issue (violation 1). <br />Yt is readily apparent in this case that appellants have not provided an <br />adequate reason for overturning the decision fiom which this appeal is taken. <br />Discussion <br />In essence, the Tatums contend that because Westmoreland owns BRI, <br />westanvreland has therefore succeeded to the tights praated under the permit, so that <br />there has been a change of ownership of the right to conduct mining operations <br />res the approval of DBMS. In other words, they equate <br />under a permit that requi <br />ownership of Bl~ with ownership of 'the rights under its permit. O5M contends that <br />the rights grsnred under the permit~anotransfer ofth se ghtps to Westimore and thaz <br />permit remain with BRI so.th <br />required approval by D1tMS. <br />Ia support of their argu~aaent, the Tatutas refer to a response OSM made to a <br />comment when, it published rules implemeatin$ 5MCl~H in 2000. The comment <br />4 <br />