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IBLA 96-90R, 96-91R <br />postdates the Regional Director's decision. 'We do not consider the State <br />court's decision to be a new factual development. Rather it represents a <br />State judicial resolution of the precise issue identified by the C14I Deputy <br />Director as critical to resolution of that part of the Tatums' citizen <br />ecplaint regarding subsidence. There has been no showing that the <br />evidence presented in State court differed in any material way fray the <br />evidence that was available to the Regional Director at the time he issued <br />the decision under appeal. <br />OEM would restrict our consideration to only that evidence available <br />to the Regional Director at the time he issued his decision. We do not <br />believe such a restriction is warranted. As we have stated, the Board, <br />delegated the authority to act as fully and finally as might the Secretary <br />in deciding appeals within its jurisdiction, "is not so limited in the <br />scope of appellate review and decisionmaking as to be required to affirm <br />decisions by subordinate officers and employees merely because they are <br />supported by "substantial evidence" or are perceived not to be arbitrary <br />and/or capricious, particularly where a preponderance of the evidence leads <br />to a different result; The Secretary, as chief executive officer of the <br />Department * * *, has plenary authority to review de now all official <br />actions and to decide appeals from such actions on the basis of a <br />preponderance of the evidence in cases involving substantive rights, or on <br />the basis of the public policy or public interest in cases involving the <br />exercise of discretion. Act of March 3, 1849, 9 Stat. 395." United States <br />Fish & Wildlife Service, 72 IBLA 218, 220 (1983). <br />If, for example,!in this case, the Tatums had am e forward on appeal <br />with affidavits from the OEM officials who examined their house stating <br />that those officials now believed that subsidence caused damage to the <br />Tatums' house, under dEM's theory the Board could not consider such <br />evidence because "it was not part of the record before either EM or OEW <br />when they issued their decisions. Clearly, the Board, acting for the <br />Secretary, is not so limited in its decisionmaki.ng. Such evidence, when <br />viewed along with all the other evidence of record, would support a finding <br />that a preponderance of evidence established that subsidence damaged the <br />house and that a violation of State regulations occurred. So to with the <br />State court decision in this case. The Tatums submitted the State court <br />decision on appeal in ;support of their position that subsidence had damaged <br />their hone. Prior to issuance of our decision, CEi raised no objection to <br />its ecnsideration. We concluded that the State court decision, along with <br />all the other evidence'of record, established by a preponderance of the <br />evidence that a violation had occurred. 3/ <br />i <br />3/ CEM states in its response to the Tatumtis' opposition that the Board <br />used an incorrect legal standard when it applied the preponderance of <br />evidence standard "in 'reviewing the Regional Director's decision," but that <br />it believes we should have applied the arbitrary and capricious standard <br />6