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IBLA 96-90,96-91 <br />violation to be corrected or "good cause" for fail= to do so. 30 C.F.R. § 842.1 l(bXiiXBX2). Those regulations fiuther <br />state that "[a]ppropriate action includes enforcement or other action authorized under the State program to cause the <br />violation to be conwed." 30 C.F.R. § 842.11(bXiiXBX3). <br />In this case, there was no enforcement or other action by DMG to cause a violation to be corrected because DMG <br />found that BRI's mining operation did not cause subsidence darnage to the Tatun residence. Under the regulations, OSM <br />was to determine "wlklher,the standards for appropriate action or good cause for such failure" were met 30 C.F.R. § <br />842. l l (bXiiX I X BX I ). Although DMG took no action, the OSM AFO concluded that DN1G took appropriate action. The <br />Regional Director affirmed that conclusion. However, ifOSM considered DMG's determination not to be arbitrary, <br />capricious, or an abuse of discretion under the State progra n, it should have concluded that DMG's response constituted <br />"good cause" for failure to take'action because, in accordance with 30 C.F.R. § 842.11(bXiiXBX4Xi), under the State <br />program the violation did not exist. See Emest Back, 135 IBLA at 249-50. <br />We believe, however, that the present record establishes by a preponderance of the evidence that a violation did exist. <br />Appellants have presented a decision issued by a Colorado State cant in a case involving them and BRI. Although neither <br />DMG nor OSM were parties to that proceeding, the Judge determined that subsidence caused by BRI's mining operation <br />did in fact, damage appellants' residence. Such a finding establishes a violation of the Colorado State program under 2 <br />Colo. Code Regs. 4 .20, as cited,in the TDN. <br />We conclude that DMG's determination that no violation existed, which served as the basis for OSM's actions under 30 <br />C.F.R. § 842.11(bXiiXBX 1 X is, therefore, not supported by the present record and is arbitrary, capricious, and an abuse of <br />discretion. For flat mason, we cannot uphold the Regional Director's decision and, hereby, vacate it In addition, the <br />underlying AFO decision is also vacated. The case is remanded to OSM for appropriate action. <br />Accordingly, pusuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 <br />C.F.R § 4. I. die decision appealed from in IBLA 96-90 is affirmed as modified and the decision appealed from in IBLA <br />96-91 is vacated aril the case rerrianded to OSM for appropriate action <br />Bruce R: Harris <br />Deputy Chief Administrative Judge <br />I concur. <br />James L. Byrnes <br />ChiefAdministrative Judge <br />151 IBLA 308