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2007-05-10_ENFORCEMENT - C1981013
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2007-05-10_ENFORCEMENT - C1981013
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Last modified
8/24/2016 3:16:52 PM
Creation date
8/7/2009 3:58:43 PM
Metadata
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Template:
DRMS Permit Index
Permit No
C1981013
IBM Index Class Name
Enforcement
Doc Date
5/10/2007
Doc Name
DRMS Brief in Support of NOV CV2007001, Civil Penalty & Proposed Decision on SI
Violation No.
CV2007001
Media Type
D
Archive
No
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damages to the Tatums in the amount of $48,000. Basin Resources paid the <br />judgment in full. 3 <br />The Tatums filed this court judgment as a supplemental exhibit in the IBLA <br />appeal. The IBLA gave OSM an extended period of time to respond to this <br />new exhibit; OSM failed to respond. Based on a record that included <br />competing expert opinions about whether subsidence occurred, the IBLA <br />gave great weight to the court judgment. The IBLA held in its January 5, <br />2000 opinion that thie record established by a preponderance of the evidence <br />that subsidence had occurred. The IBLA specifically cited to the court's <br />finding of subsidence and concluded that such finding established a violation <br />of the Colorado State program under 2 CCR 407-2, Rule 4.20.4 The IBLA <br />vacated OSM s decision upholding DRMS action and remanded the case to <br />OSM for appropriate action. The IBLA's opinion is attached for your <br />convenience as Exhibit A. <br />In its denial of OSMI's subsequent petition for reconsideration, the IBLA <br />rejected OSM's argument that the IBLA should not have placed any reliance <br />on the district court's judgment since that was not part of the record at the <br />time OSM and DRMS made their decisions concerning whether to issue a <br />violation. The IBLA explained that the state court resolved the precise issue <br />identified by OSM as critical to resolution of Tatums' citizen complaint. <br />The IBLA stated there was no showing that the evidence presented in the <br />state court differed in any material way with the evidence that was available <br />to the regional director at the time he issued the decision under appeal. <br />Accordingly, the IBLA denied OSM's petition for reconsideration. The <br />IBLA's denial is attached for your convenience as Exhibit B. <br />2. Second occurrence of subsidence <br />I <br />In 2000, the Tatums ;filed a second citizen complaint with the Division and <br />requested the Division to issue a NOV based on a second incidence of <br />damage caused to their house by subsidence. Based on the prior court <br />I <br />3 Tatums' suit alleged amonglother things that subsidence caused by Basin Resources' mining operation <br />resulted in damage to their home. They alleged that the cost to repair could be as much as $100,000 and <br />the cost to replace the home was estimated between $300,000 to $400,000. Tatums alleged they had <br />suffered a loss in value of $65,000. Tatums in their complaint did not cite to 2 CCR 407-2, Rule 4.20. <br />a In addition, in its denial of GSM's subsequent petition for reconsideration, the IBLA specifically held that <br />"The record shows at the time DMG concluded its technical evaluation in this case subsidence had caused <br />material damage to the Tatum I s' house. That fact established a violation of 2 Colo. Code Regs. <br />§ 4.20.3(2)..." <br />i
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