Sterling Ethanol, LLC v. Colorado Air Quality Control Commission , 413 P.3d 215 ( 2017 )

COLORADO COURT OF APPEALS 2017COA26
Court of Appeals No. 16CA1867
Logan County District Court No. 16CV30061
Honorable Charles M. Hobbs, Judge
Sterling Ethanol, LLC; and Yuma Ethanol, LLC,
Plaintiffs-Appellees,
v.
Colorado Air Quality Control Commission; and Colorado Department of Public
Health and Environment,
Defendants-Appellants.
ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division A
Opinion by JUDGE FOX
Ashby and Berger, JJ., concur
Announced February 23, 2017
Greenberg Traurig, LLP, Paul Seby, Hayley Easton, Denver, Colorado, for
Plaintiffs-Appellees
Cynthia H. Coffman, Attorney General, Robyn L. Wille, Laura Terlisner Mehew,
Assistant Attorney General, Denver, Colorado, for Defendants-Appellants
¶1 In this C.A.R. 4.2 interlocutory appeal, defendant, the Air
Quality Control Commission (the Commission), seeks review of the
district court’s order declining to dismiss the complaint of plaintiffs,
Sterling Ethanol, LLC and Yuma Ethanol, LLC (collectively,
Companies).1 The complaint sought review of a May 19, 2016,
Commission order affirming two adverse compliance orders that the
Colorado Air and Pollution Control Division (the Division) had
issued. Neither the Colorado Supreme Court nor any division of
this court has published a decision examining how the Colorado Air
Pollution Prevention and Control Act (the APPCA), §§ 25-7-101 to -
1309, C.R.S. 2016; the State Administrative Procedure Act (the
APA), §§ 24-4-101 to -204, C.R.S. 2016; and the Commission’s
procedural rules, when read together, affect the deadline to seek
judicial review where the party seeking judicial review first filed a
motion to reconsider with the Commission.2 Therefore, we conclude
1 The Commission is an agency within the Colorado Department of
Public Health and Environment. See § 25-7-104(1), C.R.S. 2016.
2 Although divisions of this court have published opinions on facts
similar to the facts in this case, those cases involved other statutes
and different agencies. See, e.g., Bates v. Henneberry, 211 P.3d 68,
72 (Colo. App. 2009) (considering 42 U.S.C. § 1396p (2012) and the
Department of Health Care Policy and Financing); Jeffries v. Fisher,
1
that this case implicates an unresolved question of law warranting
review pursuant to C.A.R. 4.2. C.A.R. 4.2(a) & (b); see also § 13-4-
102.1, C.R.S. 2016. We grant the Commission’s petition for
interlocutory review, reverse the district court’s order, and remand
with directions.
I. Background
¶2 Companies are ethanol manufacturing plants that are sources
of air pollution in northeastern Colorado. They are required to
operate in accordance with air permits issued by the Division.
¶3 After the Division issued two compliance orders addressing the
Companies’ alleged violations of their air permits, Companies
sought timely administrative review of the orders from the
Commission, which operates pursuant to the APPCA. The
Commission consolidated the cases and held an evidentiary
hearing. On May 19, 2016, the Commission issued a “final order”
affirming the Division’s orders “in all material respects.”
66 P.3d 218, 219 (Colo. App. 2003) (considering section 42-2-
126(10)(a), C.R.S. 2002, and the Department of Revenue).
2
¶4 On May 31, 2016, Companies filed a motion to reconsider,3
which the Commission denied on June 22, 2016, thirty-four days
after the final order was issued. Companies filed a complaint in the
district court on July 27, 2016, sixty-nine days after the
Commission issued its final order and thirty-five days after the
Commission denied the motion to reconsider.4 The Commission
then filed a motion to dismiss for lack of subject matter jurisdiction,
arguing that the complaint was untimely filed. The district court
denied the motion to dismiss.
¶5 Thereafter, the Commission requested certification for
immediate interlocutory review. The district court certified the
3 The Code of Colorado Regulations, Dep’t of Pub. Health & Env’t
Rule VI.F, 5 Code Colo. Regs. 1001-1, provides that a motion to
reconsider a final decision must be made within ten days of the
date of the decision.
4 Initially, Companies sought judicial review of the Commission’s
June 22 denial of the motion to reconsider. Later, they clarified
their position as seeking judicial review of the May 19 final order, as
decisions declining to reconsider are generally non-reviewable. See
Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S.
270, 283-84 (1987) (stating that under the Federal Administrative
Procedure Act, a petition based on new evidence or changed
circumstances is reviewable but otherwise a refusal to reconsider is
not reviewable). As explained below, an order from the Commission
that constitutes final agency action must be appealed within thirty-
five days after the effective date of the order. See § 24-4-106(4),
C.R.S. 2016. Here, that deadline was June 23 for the May 19 order.
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following question for review: “Whether, when read together, the
[APA], the APPCA and the Commission’s Procedural Rules compel
the conclusion that the Complaint was untimely filed, depriving this
Court of subject matter jurisdiction.” As explained here, the answer
to this inquiry is “yes.”
II. The District Court Lacked Jurisdiction Over the Companies’
Belated Challenge
¶6 The district court erred in denying the motion to dismiss
because the Companies’ complaint was untimely, depriving the
court of subject matter jurisdiction. The party seeking judicial
review must file a complaint within thirty-five days of the effective
date of the Commission’s final order, even if that party first filed a
motion to reconsider, and the Commission declined to reconsider its
order. The plain language of the APPCA, the APA, and the
Commission’s procedural rules requires such a conclusion.
A. Standard of Review and Applicable Law
¶7 We apply a mixed standard of review to motions to dismiss for
lack of subject matter jurisdiction. Hanson v. Colo. Dep’t of
Revenue, 140 P.3d 256, 257-58 (Colo. App. 2006). We review
factual findings for clear error, and such findings will be upheld
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unless they have no support in the record. Id. However, we review
legal conclusions de novo. Id. We also review a district court’s
interpretation of a statute de novo. See Anderson v. Vail Corp., 251
P.3d 1125, 1127-28 (Colo. App. 2010). In construing legislation, we
look first to the plain language of the statute, reading it as a whole.
Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 11. Then, if the
language is ambiguous, we “construe the statute in light of the
General Assembly’s objective,” presuming “that the legislature
intended a consistent, harmonious, and sensible effect.” Anderson,
251 P.3d at 1127-28.
¶8 The APPCA states that any “final order or determination by . . .
the [C]ommission shall be subject to judicial review in accordance
with the provisions of” the APPCA and the APA. § 25-7-120(1),
C.R.S. 2016. The APA, in turn, provides that “[f]inal agency action
under this or any other law shall be subject to judicial review as
provided in this section, whether or not an application for
reconsideration has been filed, unless the filing of an application for
reconsideration is required by the statutory provisions governing
the specific agency.” § 24-4-106(2), C.R.S. 2016 (emphasis added).
Additionally, “any person adversely affected or aggrieved by any
5
agency action may commence an action for judicial review in the
district court within thirty-five days after such agency action
becomes effective.” § 24-4-106(4).
¶9 The APPCA gives no further guidance as to when final orders
become effective or when parties must seek judicial review.
However, the procedural rules promulgated by the Commission
pursuant to section 25-7-105, C.R.S. 2016, state that “[u]nless the
Commission designates another date, the effective date of the final
decision is the date of adoption of a dispositive resolution of the
entire matter heard, including an order to that effect.” Dep’t of Pub.
Health & Env’t Rule VI.E.3, 5 Code Colo. Regs. 1001-1. The rules
also state that a “request to reconsider all or part of any final
decision by the Commission may be made by either [party],” and
that “[w]hen the Commission decides to reconsider any portion of a
final decision, the effective date of the entire decision is suspended
until reconsideration is complete.” Id. at VI.F.1 (emphasis added);
see also A.S. v. People, 2013 CO 63, ¶ 21 (“[T]he legislature’s use of
the term ‘may’ is generally indicative of a grant of discretion or
choice among alternatives.”).
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¶ 10 The APA relatedly provides that the effective date for final
agency orders is “on the date mailed or such later date as is stated
in the decision.” § 24-4-105(16)(a), C.R.S. 2016; see also
Associated Gov’ts of Nw. Colo. v. Colo. Pub. Utils. Comm’n, 2012 CO
28, ¶ 8 (“Where a statute provides a right of review of an
administrative decision, the statute is the exclusive means to secure
review. A petitioner’s failure to comply strictly with the statutory
procedure deprives the district court of jurisdiction.”) (citation
omitted); Allen Homesite Grp. v. Colo. Water Quality Control Comm’n,
19 P.3d 32, 34 (Colo. App. 2000) (noting that the failure to seek
timely judicial review under the APA deprives the district court of
jurisdiction). The APA further states that “[u]pon application by a
party, and prior to the expiration of the time allowed for
commencing an action for judicial review, the agency may change
the effective date of a decision or initial decision.” § 24-4-105(16)(b)
(emphasis added).
B. Analysis
¶ 11 The July 27 complaint at issue was untimely. The
Commission issued a “final order” stating that “[t]he appeals of [the
Companies] are DENIED and the orders are AFFIRMED in all
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material respects” and that this was “DONE and ORDERED this
19th day of May 2016.” This final order resolved the entire matter
and became effective on May 19, 2016, as specified in the order.
See Dep’t of Pub. Health & Env’t Rule VI.E.3, 5 Code Colo. Regs.
1001-1; see also § 24-4-105(16)(a).
¶ 12 Although Companies filed a motion to reconsider pursuant to
Rule VI.F.1, the applicable statutes did not require Companies to do
so before seeking judicial review. See Dep’t of Pub. Health & Env’t
Rule VI.F.1, 5 Code Colo. Regs. 1001-1; see also A.S., ¶ 21. The
plain language of Rule VI.F.1 leads us to conclude that the effective
date is suspended only when the Commission decides to reconsider
one of its final orders or determinations; if the Commission declines
to do so, the effective date remains unchanged. See Dep’t of Pub.
Health & Env’t Rule VI.F.1, 5 Code Colo. Regs. 1001-1; see also
§ 24-4-105(16)(b); Young, ¶ 11.
¶ 13 Because the Commission ultimately declined to reconsider its
final order, filing the motion to reconsider did not suspend or
change the order’s initial effective date of May 19, 2016, in spite of
the Companies’ contentions to the contrary. See Dep’t of Pub.
Health & Env’t Rule VI.F.1, 5 Code Colo. Regs. 1001-1; see also
8
§ 24-4-106(2); Bates v. Henneberry, 211 P.3d 68, 73 (Colo. App.
2009) (considering the effect of section 24-4-106(2) on proceedings
before the Department of Health Care Policy and Financing and
determining that a motion for reconsideration did not toll the
deadline for seeking judicial review). Either party could have
explicitly asked the Commission to change the effective date of the
order to the date the Commission decided the motion to reconsider,
but neither party did so.5 See § 24-4-105(16)(b); see also Bethesda
Found. of Neb. v. Colo. Dep’t of Soc. Servs., 877 P.2d 860, 862-63
(Colo. 1994) (determining that, where the decision-maker has the
discretion to specify the effective date of its decision, the decision-
maker has the power to modify the decision’s effective date).
¶ 14 Companies’ complaint, filed sixty-nine days after the effective
date of the final order and thirty-four days after the June 23
deadline to seek judicial review, was untimely. See § 24-4-106(4).
As a result, the district court lacked subject matter jurisdiction.
5 On June 24, 2016, one day after the deadline to seek judicial
review of the Commission’s final order, Companies asked the
Commission to stay the final order pending their request for judicial
review. The request was denied because any request for judicial
review was then untimely.
9
See Associated Gov’ts of Nw. Colo., ¶ 8; see also Allen Homesite
Grp., 19 P.3d at 34.
¶ 15 To the extent that Companies suggest that the untimeliness of
their complaint was caused by their reliance on any
misrepresentation by the Commission, we reject this contention.
We see no indication in the record of any such misrepresentation.
III. Conclusion
¶ 16 The plain language of the statutes and rules at issue lead us
to conclude that the complaint was untimely and, as a result, the
district court lacked subject matter jurisdiction. Accordingly, the
district court had no option but to dismiss. We therefore reverse
the order denying the Commission’s motion to dismiss and remand
for the district court to enter an order dismissing the action.
JUDGE ASHBY and JUDGE BERGER concur.
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