2020 COA 127
Colo. Ct. App.2020Background:
- Peabody Sage Creek Mining owned an inactive Colorado mine and received a renewed groundwater-discharge permit in 2015 (the 2015 Permit).
- Peabody sought reconsideration under § 25-8-403; the matter was referred to an ALJ who issued an Initial Decision modifying the permit largely in Peabody’s favor.
- Both parties filed exceptions to the ALJ’s Initial Decision; the Executive Director reviewed and issued a "Final Agency Order" reversing portions of the ALJ and stating the 2015 Permit would "go into effect immediately."
- Peabody filed for judicial review in district court 35 days after the Final Agency Order, invoking the APA’s 35-day deadline for agency actions (§ 24-4-106(4)).
- The Water Quality Division moved to dismiss for lack of subject-matter jurisdiction, arguing the Water Quality Control Act’s 30-day deadline (§ 25-8-404(3)) applied because the Final Agency Order was a final order "of the division."
- The district court dismissed Peabody’s complaint as untimely; the court of appeals affirmed dismissal as untimely but ordered the dismissal changed from with prejudice to without prejudice.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Executive Director’s Final Agency Order was a "final" agency action for judicial-review purposes | Peabody: The Final Agency Order was not an act of the water division and thus not a final "division" order under the Act | Water division: The Final Agency Order concluded the administrative appeal and was the final action making the permit final | Held: Yes — the Final Agency Order marked consummation of the process and was final for judicial-review purposes |
| Which filing deadline governs judicial review: APA 35 days or Act 30 days | Peabody: APA § 24-4-106(4) (35 days) governs; Executive Director’s order is an agency action distinct from the division | Water division: The Act’s § 25-8-404(3) (30 days) controls because the Final Agency Order was the culmination of the division’s reconsideration process | Held: Act’s 30-day deadline applies; Peabody’s filing 35 days after the Final Agency Order was untimely |
| Whether the Executive Director’s issuance of the Final Agency Order means the Act’s reconsideration scheme was not followed | Peabody: The Executive Director’s action was a separate APA-authorized review, not an action "of the division" under the Act | Water division: Department rules and APA procedures show the Executive Director acted as the agency in the division’s reconsideration; APA is a gap-filler but does not conflict with the Act | Held: Executive Director acted as "the agency" in the division’s reconsideration; this did not create a separate reconsideration route |
| Whether dismissal should be with prejudice | Peabody: Requested relief challenging dismissal with prejudice | Water division: Dismissal for lack of jurisdiction is proper given untimeliness | Held: Dismissal for lack of jurisdiction affirmed as untimely, but dismissal must be without prejudice (12(b)(1) dismissal is not on the merits) |
Key Cases Cited
- Butz v. Economou, 438 U.S. 478 (1978) (ALJ/hearing examiner must exercise independent judgment free from agency pressures)
- Colo. Water Quality Control Comm’n v. Town of Frederick, 641 P.2d 958 (Colo. 1982) (finality of water-quality decisions under the Act)
- V Bar Ranch LLC v. Cotten, 233 P.3d 1200 (Colo. 2010) (agency-specific statute controls over conflicting APA provisions)
- Hawes v. Colo. Div. of Ins., 65 P.3d 1008 (Colo. 2003) (agencies possess implied powers necessary to effectuate mandates)
- Roosevelt Tunnel, LLC v. Norton, 89 P.3d 427 (Colo. App. 2003) (APA and agency statutes govern agencies with statewide jurisdiction)