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i <br />i <br />Based on Tatums' separate citizen complaints directed to it, OSM issued a <br />TDN to the Division concerning the Tatums' current citizen complaint. <br />(Attached as Exhibit; G). The Division thereafter issued NOV CV-2007-001, <br />thereby responding to the TDN. (Attached as Exhibit H; see also OSM's <br />response attached as! Exhibit I) <br />Basin Resources responded to Tatum's citizen complaint by stating the <br />Tatums received a judgment and have started post judgment collection <br />remedies against Basin Resources. Basin Resources stated it knows of no <br />basis in the Coal Act or regulations to call upon the Division for aid in <br />enforcement of a state court money judgment. <br />However, as stated above, Basin Resources' position is misguided. <br />Subsidence damage is a basis for a civil damage suit as well as a violation of <br />the Coal Act and regulations. §§ 34-33-121 and 135(6), C.R.S. Contrary to <br />Basin Resources' argument, the Division is not attempting to aid in the <br />enforcement of a money judgment; the Division is enforcing its own Act and <br />regulations to ensure; that Basin Resources is in regulatory compliance as a <br />permittee. <br />In addition, Basin Resources' argument in response to the current NOV that <br />it has a choice as to how to abate the NOV was specifically rejected by the <br />Court of Appeals in its published opinion. The Court of Appeals <br />specifically held that the Coal Act and associated regulations do not confer <br />onto a defendant found to have caused subsidence damage to a plaintiff the <br />power to elect which! remedy to provide. Tatum, 141 P.3d at 870-71. The <br />opinion is attached for your convenience as Exhibit J. <br />Thus, given that the settlement agreement does not preclude the current <br />NOV; that the Division is not enforcing a money judgment but is ensuring <br />that regulatory requirements are met; and that the Court of Appeals rejected <br />Basin Resources' argument that it has a choice as to how to abate the NOV, <br />the Division properly,, issued this NOV and this Board should uphold the <br />NOV. <br />C. Case law re: claim and issue preclusion <br />In anticipation of possible arguments by Basin Resources that the Division is <br />somehow precluded from issuing the NOV because of the Tatums' lawsuit <br />15