2017 COA 26
Colo. Ct. App.2017Background
- Sterling Ethanol, LLC and Yuma Ethanol, LLC (Companies) received two compliance orders from the Colorado Air and Pollution Control Division alleging permit violations.
- Companies administratively appealed to the Colorado Air Quality Control Commission (Commission); after a consolidated hearing the Commission issued a final order on May 19, 2016, affirming the Division’s orders.
- Companies filed a motion to reconsider on May 31; the Commission denied reconsideration on June 22 (thirty-four days after the final order).
- Companies filed a district court complaint on July 27, 2016 — sixty-nine days after the May 19 final order and thirty-five days after the Commission’s denial of reconsideration.
- The Commission moved to dismiss for lack of subject-matter jurisdiction as untimely; the district court denied the motion and certified the question for interlocutory review.
- The Court of Appeals granted interlocutory review, reversed the district court, and directed dismissal because the Companies’ judicial challenge was untimely under the APPCA, APA, and the Commission’s rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filing a motion to reconsider tolls or changes the effective date of a Commission final order for purposes of the 35‑day judicial‑review deadline | Companies argued their motion to reconsider postponed the effective date so the 35‑day clock ran from the Commission’s denial of reconsideration | Commission argued the final order’s effective date (May 19) controlled; a motion to reconsider does not automatically suspend that date unless the Commission elects to reconsider or the parties request a change | Held: The effective date remained May 19; the motion to reconsider did not extend the 35‑day judicial‑review period because the Commission declined to reconsider and the effective date was not changed by the parties |
| Whether the APA’s proviso about reconsideration alters the judicial‑review deadline | Companies relied on APA language addressing reconsideration to argue tolled review timing | Commission pointed to APA text and its procedural rules showing reconsideration is discretionary and does not automatically delay effectiveness | Held: APA § 24‑4‑106(2) does not require tolling; judicial review must be filed within 35 days of the effective date unless the agency changes that date |
| Whether district court had subject‑matter jurisdiction over a late-filed complaint | Companies contended equitable or procedural reasons excused lateness | Commission contended strict compliance is jurisdictional and failure to timely file deprives the court of jurisdiction | Held: Timeliness is jurisdictional; the district court lacked subject‑matter jurisdiction and must dismiss the complaint |
| Whether any misrepresentations by the Commission excused the late filing | Companies suggested reliance on Commission communications justified delay | Commission denied any misrepresentation; record showed none warranting equitable relief | Held: No record evidence of misrepresentation; untimeliness was not excused |
Key Cases Cited
- Hanson v. Colo. Dep’t of Revenue, 140 P.3d 256 (Colo. App. 2006) (standard of review for jurisdictional dismissals and mixed questions)
- Anderson v. Vail Corp., 251 P.3d 1125 (Colo. App. 2010) (statutory interpretation de novo and harmonizing statutes)
- Bates v. Henneberry, 211 P.3d 68 (Colo. App. 2009) (motion for reconsideration does not toll APA review deadline in similar administrative context)
- Allen Homesite Grp. v. Colo. Water Quality Control Comm’n, 19 P.3d 32 (Colo. App. 2000) (failure to seek timely judicial review under APA deprives court of jurisdiction)
- Bethesda Found. of Neb. v. Colo. Dep’t of Soc. Servs., 877 P.2d 860 (Colo. 1994) (agency has power to specify or modify decision effective dates)
- Interstate Commerce Comm’n v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987) (refusal to reconsider is generally non‑reviewable under federal APA principles)