v. Colorado Department of Public Health and Environment , 2020 COA 50 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 26, 2020
2020COA50
No. 18CA1551, Board v. Colorado Department of Public Health
and Environment — Government — Colorado Governmental
Immunity Act — Solid Wastes Disposal Sites and Facilities;
Administrative Law — State Administrative Procedures Act;
Torts
In this proceeding, a division of the court of appeals considers
whether the Colorado Governmental Immunity Act (CGIA) prevents
the Colorado Department of Public Health and Environment (the
Department) from bringing an enforcement action against a county
under the Solid Waste Disposal Sites and Facilities Act (SWA). The
division concludes that the CGIA does not bar the Department’s
enforcement action because a statutorily authorized public
enforcement action to abate hazardous environmental conditions
that does not seek compensation for personal injuries or specific
property damage is not a tort claim or a claim that could lie in tort.
The division also considers whether the district court erred by
holding that (1) the Office of Administrative Courts (OAC) did not err
by refusing to certify for interlocutory appeal under C.R.C.P. 54(b)
La Plata County Board of Commissioners’ (La Plata) argument that
a county is not a “person” under the SWA; and (2) La Plata failed to
show it would suffer irreparable injury from the OAC’s decision.
The division concludes that, because section 24-4-106(8), C.R.S.
2019, of the State Administrative Procedure Act governs appeals of
nonfinal agency actions, the district court did not need to decide
whether the OAC erred by applying Rule 54(b). Further, the
division concludes that La Plata’s cross-appeal is moot given the
division’s holding in the Department’s appeal.
Accordingly, the division reverses the district court’s decision
holding that the CGIA bars the Department’s enforcement action
and dismisses, in part, La Plata’s cross-appeal.
COLORADO COURT OF APPEALS 2020COA50
Court of Appeals No. 18CA1551
La Plata County District Court No. 16CV30152
Honorable Suzanne F. Carlson, Judge
Board of County Commissioners of the County of La Plata, Colorado,
Plaintiff-Appellee and Cross-Appellant,
v.
Colorado Department of Public Health and Environment,
Defendant-Appellant and Cross-Appellee.
JUDGMENT REVERSED AND APPEAL DISMISSED IN PART
Division VII
Opinion by JUDGE FOX
Berger and Lipinsky, JJ., concur
Announced March 26, 2020
Asimakis D. Iatridis, LLC, Maki Iatridis, Boulder, Colorado, for Plaintiff-
Appellee and Cross-Appellant
Philip J. Weiser, Attorney General, David Kreutzer, First Assistant Attorney
General, Lukas Staks, Senior Assistant Attorney General, Denver, Colorado, for
Defendant-Appellant and Cross-Appellee
Nicolas Sarmiento, County Attorney, Conejos, Colorado for Amicus Curiae
Conejos County
¶1 The Colorado Department of Public Health and Environment’s
(the Department) and the Board of County Commissioners of La
Plata County’s (La Plata) dispute presents an issue of first
impression — whether Colorado’s Governmental Immunity Act
(CGIA) prevents the Department from bringing an enforcement
action against a county under the Solid Waste Disposal Sites and
Facilities Act (SWA). Because a public enforcement action under
the SWA does not and could not lie in tort, we hold that the CGIA
does not preclude the Department’s SWA enforcement against La
Plata. Accordingly, we reverse the district court’s ruling on this
issue.
¶2 La Plata also cross-appeals the district court’s denial of its
request for interlocutory appeal of the Office of Administrative
Court’s (OAC) ruling that La Plata is a “person” under the SWA. La
Plata also cross-appeals the district court’s holding that La Plata
did not suffer irreparable injury necessary to review the OAC’s
ruling under section 24-4-106(8), C.R.S. 2019, of the State
Administrative Procedure Act (APA). As explained below, we dismiss
La Plata’s cross-appeal.
1
I. Background
¶3 La Plata County owns the Bayfield Landfill (the landfill), a solid
waste landfill located in Bayfield, Colorado, and closed since 1994.
Since 2004, groundwater monitoring tests at the landfill have
shown elevated concentrations of vinyl chloride. The Department
and La Plata collaborated to monitor and remediate the
contaminated groundwater until 2016, when the Department
issued a compliance order to La Plata pursuant to section 30-20-
113(2), C.R.S. 2019, because La Plata refused to enter into an
administrative order to address the groundwater contamination.
¶4 La Plata objected by motion to the compliance order as
unnecessary and overly costly. It sought OAC review under the APA
raising nine issues, including, as relevant here, that (1) the CGIA
grants La Plata immunity from the compliance order (the CGIA
defense) and (2) La Plata is not a “person” subject to the SWA (the
SWA defense).1
1 La Plata raised the CGIA and SWA defenses in a motion to void the
unilateral administrative order (UAO). At the administrative phase
of the proceedings, the parties referred to the compliance order as
the “UAO.”
2
¶5 The OAC denied La Plata’s motion, holding that the CGIA does
not shield La Plata from the compliance order and that La Plata is a
“person” subject to the SWA. The parties filed a joint motion
seeking OAC certification of the order for interlocutory appeal under
C.R.C.P. 54(b).2 The OAC denied the motion.
¶6 The parties then filed a joint motion for reconsideration,
arguing that the OAC’s order on La Plata’s motion was not a final
order because other issues before the OAC remained unresolved.
The OAC partially granted the motion for reconsideration, clarifying
that its order denying La Plata’s motion was a final order only
regarding the CGIA and SWA defenses. However, the OAC again
denied the parties’ request for certification for interlocutory appeal
under Rule 54(b). The OAC stayed further proceedings, including
La Plata’s challenge to the Department’s remedy, pending resolution
of La Plata’s appeal.
¶7 La Plata appealed the OAC’s orders, and the district court
conducted a bifurcated review to determine if the OAC erred by (1)
2The rules of procedure for OAC state that, “[t]o the extent
practicable, and unless inconsistent with these rules, the Colorado
Rules of Civil Procedure apply to matters before the OAC.” Dep’t of
Pers. and Admin. Rule 15, 1 Code Colo. Regs. 104-1.
3
refusing to certify for appeal its order denying La Plata’s motion and
(2) denying La Plata’s motion. The district court conducted this
two-part review because the parties insisted the first analysis was
necessary to determine the appropriate standards of review to apply
to the CGIA and SWA defenses in step two.
¶8 Applying section 24-4-106(8) of the APA, the district court first
determined that the CGIA authorizes interlocutory appeals of
governmental immunity claims. Thus, it concluded that whether
the OAC certified that issue for interlocutory appeal under Rule
54(b) was irrelevant and that it would review the CGIA defense
under section 24-4-106(7), C.R.S. 2019.3
¶9 However, the district court determined that it would review the
OAC’s rejection of the SWA defense under section 24-4-106(8),
which requires a showing of irreparable injury and agency action
that is “clearly beyond the constitutional or statutory jurisdiction or
authority of the agency.” The district court recognized that, unlike
3 Under section 24-4-106(7), courts may overturn a final agency
action if it is arbitrary or capricious, contrary to law, violative of
constitutional rights, or an abuse of discretion. However, under
section 24-10-106(8), a court may review a nonfinal administrative
proceeding if an agency action (1) causes irreparable injury and (2)
clearly exceeds statutory or constitutional jurisdiction or authority.
4
the CGIA, the SWA does not allow for immediate appeal. Further,
the district court found that La Plata failed to demonstrate under
section 24-4-106(8) that the OAC’s refusal to certify the SWA
defense for interlocutory appeal caused La Plata irreparable injury.
Thus, the district court upheld the OAC’s refusal to certify for
appeal, under Rule 54(b), its decision regarding the SWA defense.
¶ 10 After additional briefing, the district court determined that the
CGIA bars enforcement of the compliance order against La Plata
because (1) the Department suffered an injury and (2) the
compliance order is essentially a public nuisance claim that could
lie in tort. However, it did not review the merits of the SWA defense
because it concluded that the OAC’s rejection of the SWA defense
did not cause La Plata irreparable harm under section 24-4-106(8).
Finally, the district court awarded La Plata attorney fees as the
prevailing party. See § 13-17-201, C.R.S. 2019.
II. The CGIA Defense
¶ 11 The Department argues that the district court erred by holding
that the CGIA bars the Department’s enforcement of the compliance
order against La Plata. Specifically, the Department argues that the
district court’s order contradicts the plain language and legislative
5
schemes of the SWA and CGIA, and that it forces inconsistent,
unharmonious, and nonsensible effects. We agree.
A. Preservation and Standard of Review
¶ 12 The parties agree that the Department preserved most of its
arguments for appeal. However, La Plata asserts that the
Department failed to preserve its argument that CGIA immunity
only applies in cases where a private person brings a claim against
a public entity. We need not consider whether the Department
preserved this argument because we reverse the district court’s
ruling on different grounds.
¶ 13 “A C.R.C.P. 12(b)(1) motion to dismiss on grounds of immunity
under the CGIA raises a jurisdictional issue[.]” Padilla v. Sch. Dist.
No. 1, 25 P.3d 1176, 1180 (Colo. 2001). On appeal, we defer to the
district court’s factual findings, but where the facts are undisputed,
we review de novo the court’s jurisdictional ruling. Walton v. State,
968 P.2d 636, 643 (Colo. 1998).
¶ 14 We review questions of statutory interpretation de novo. See
Springer v. City & Cty. of Denver, 13 P.3d 794, 798-99 (Colo. 2000).
Our primary purpose when construing a statute is to ascertain and
give effect to the General Assembly’s intent. Id. at 799. We look
6
first to the statute’s language, giving words and phrases their plain
and ordinary meanings. Id. If the statute is unambiguous, we need
not conduct any further statutory analysis. Id. However, if the
statute is ambiguous, we may enlist tools of statutory interpretation
to ascertain the legislature’s intent. In re Marriage of Alvis, 2019
COA 97, ¶ 9. “Those tools include legislative history, prior law, the
consequences of a particular construction, and the goal of the
statutory scheme.” Id. A statute is ambiguous if multiple
reasonable interpretations are possible. Andrews v. Miller, 2019
COA 185, ¶ 21 (citing Carrera v. People, 2019 CO 83, ¶ 18).
¶ 15 “Where possible, we interpret conflicting statutes in a manner
that harmonizes the statutes and gives meaning to other potentially
conflicting statutes.” City of Florence v. Pepper, 145 P.3d 654, 657
(Colo. 2006). A “statutory scheme is read as a whole ‘to give
“consistent, harmonious and sensible effect to all of its parts,”’ in
accordance with the presumption that the legislature intended the
entire statute to be effective.” Bryant v. Cmty. Choice Credit Union,
160 P.3d 266, 274 (Colo. App. 2007) (quoting Colo. Water
Conservation Bd. v. Upper Gunnison River Water Conservancy Dist.,
109 P.3d 585, 593 (Colo. 2005)). “A statutory interpretation leading
7
to an illogical or absurd result will not be followed,” Frazier v.
People, 90 P.3d 807, 811 (Colo. 2004), and courts “avoid
constructions that are at odds with the legislative scheme,” Bryant,
160 P.3d at 274.
B. The CGIA
¶ 16 Under the CGIA, public entities are immune from liability for
all claims for injury that lie in tort or could lie in tort “regardless of
whether that may be the type of action or the form of relief chosen
by the claimant,” unless the claim falls within an exception to that
immunity. § 24-10-106(1), C.R.S. 2019. The form of the complaint
is not determinative of the claim’s basis in tort. Robinson v. Colo.
State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008). Instead, a
court must consider the nature of the injury and the relief sought.
Id.
When the injury arises either out of conduct
that is tortious in nature or out of the breach
of a duty recognized in tort law, and when the
relief seeks to compensate the plaintiff for that
injury, the claim likely lies in tort or could lie
in tort for purposes of the CGIA.
Id. “Although the nature of the relief requested is not dispositive on
the question of whether a claim lies in tort, the relief requested
8
informs our understanding of the nature of the injury and the duty
allegedly breached.” Id.; see City of Colo. Springs v. Conners, 993
P.2d 1167, 1176 (Colo. 2000) (“[A] court must examine the nature of
the injury and remedy asserted in each case to determine whether a
particular claim is for compensatory relief for personal injuries and
is therefore a claim which lies or could lie in tort for the purposes of
the CGIA.”); see also Houchin v. Denver Health & Hosp. Auth., 2019
COA 50M, ¶ 20 (holding that the CGIA applies to compensatory
damages for discrimination under the Colorado Anti-Discrimination
Act) (cert. granted Feb. 3, 2020).
¶ 17 The CGIA’s reach is not limited to claims that are capable of
being recast as common law torts by the party bringing the claim.
Colo. Dep’t of Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 690
(Colo. 2008). Rather, immunity under the CGIA “broadly
encompasses all claims against a public entity arising from the
breach of a general duty of care, as distinguished from contractual
relations or a distinctly non-tortious statutorily-imposed duty.” Id.
at 691. “[U]ltimately, [the inquiry] turns on the source and nature
of the government’s liability, or the nature of the duty from the
9
breach of which liability arises.” Id. at 690 (citing Robinson, 179
P.3d at 1003-05).
C. The SWA
¶ 18 The SWA regulates the management and disposal of solid
waste throughout Colorado. § 30-20-100.5, C.R.S. 2019. It grants
the Department the power to implement and administer the solid
waste program, § 30-20-101.5(1), C.R.S. 2019, including the power
to issue orders “requiring that [a] site and facility or person comply
with any . . . requirement, rule, or certificate of designation and
may request the attorney general to bring suit for injunctive relief or
for penalties,” § 30-20-113(2)(a), C.R.S. 2019. Any site or facility
that violates the SWA “shall be deemed a public nuisance” and
“may be enjoined by the department, the board of county
commissioners of the county wherein the violation occurred, or the
governing body of the municipality wherein the violation occurred.”
§ 30-20-113(3). Under the SWA, a “person” is “an individual,
partnership, private or municipal corporation, firm, board of a
metropolitan district or sanitation district, or other association of
persons.” § 30-20-101(3), C.R.S. 2019.
D. Analysis
10
¶ 19 The Department first argues that the language and legislative
scheme of the SWA give the Department the authority to bring
enforcement actions against counties. La Plata disagrees, arguing
that counties do not fall within the SWA’s definition of “person” and
thus cannot be subject to enforcement actions.4 To the extent the
legislature’s failure to specifically reference counties in section
4 Although the trial court did not rule on whether the Board is a
“person” under the SWA, the issue was (1) presented at the
administrative level and to the trial court; (2) ruled on at the
administrative level; and (3) fully briefed by both parties in the
administrative proceedings, in the trial court, and on appeal. See
C.A.R. 1(d) (noting that the appellate court “may in its discretion
notice any error appearing of record”); Robinson v. Colo. State
Lottery Div., 179 P.3d 998, 1008 (Colo. 2008) (recognizing that an
appellate court has discretion to notice any error appearing of
record, even if not presented to the trial court); Roberts v. Am.
Family Mut. Ins. Co., 144 P.3d 546, 549 (Colo. 2006) (recognizing
that appellate courts have discretion to consider an unpreserved
argument in a civil case); see also State v. Michielli, 937 P.2d 587,
592 (Wash. 1997) (supreme court considered application of a rule
authorizing dismissal of criminal charges in furtherance of justice,
even though parties’ supreme court briefs did not address that
issue, where the parties argued issue to trial court and court of
appeals, but court of appeals majority failed to address issue).
Under these circumstances, the parties certainly cannot claim
surprise. Moreover, the parties agree that we do not need any facts
that are not already in the record to interpret the challenged portion
of the SWA. See, e.g., Anaya v. Indus. Comm’n, 182 Colo. 244, 247,
512 P.2d 625, 627 (1973) (on a complete record, reviewing
constitutional challenge for the first time on appeal); Robinson v.
People, 173 Colo. 113, 116, 476 P.2d 262, 263 (1970) (reviewing, for
the first time on appeal, a due process challenge).
11
30-20-101(3) creates an ambiguity, we consider the rest of the SWA,
including its legislative history, and conclude that the General
Assembly was aware that counties could be violators of the SWA
and therefore subject to enforcement actions brought by the
Department.
1. Plain Language
¶ 20 It is true that section 30-20-101(3) does not expressly state
that counties are “person[s],” but the definition includes “other
association[s] of persons.” The parties disagree about whether a
county is an “association of persons.” The Merriam-Webster
dictionary defines an “association” as “an organization of persons
having a common interest.” Merriam-Webster Dictionary,
https://perma.cc/JJM8-FG53. Under this broad definition, a
county could qualify as an “association of persons.” Black’s Law
Dictionary defines an “association” as, among other things, “[a]
gathering of people for a common purpose” and “[a]n
unincorporated organization that is not a legal entity separate from
the persons who compose it.” Black’s Law Dictionary 152-53 (11th
ed. 2019). The latter definition in Black’s suggests that a county —
12
a legal entity separate from its residents — is not an “association of
persons.”
¶ 21 But the SWA’s definition of “person” includes other
governmental entities that are also separate legal entities, such as
municipal corporations and boards of metropolitan districts and
sanitation districts. These government entities are not so distinct
from counties that counties are necessarily excluded from the scope
of “association of persons.” See Mounkes v. Indus. Claim Appeals
Office, 251 P.3d 485, 488 (Colo. App. 2010) (“[W]hen a general word
or phrase follows a list of specific persons or things, the general
word or phrase will be interpreted to include only persons or things
of the same type as those listed.”).
¶ 22 La Plata, relying on Industrial Commission v. State
Compensation Insurance Fund, 94 Colo. 194, 29 P.2d 372 (1932),
also argues that, because the General Assembly used the word
“county” in other sections of the SWA, it did not intend counties to
be “person[s]” under section 30-20-101(3). Id. at 196, 29 P.2d at
373-74 (holding that the state was not a “person” or “association of
persons” under the Worker’s Compensation Act (WCA) because the
legislature explicitly defined “employer” to include public employers,
13
such as the state, and private employers, defined as, among other
things, “every person” and “association of persons”). While it is true
the SWA mentions counties in other sections of the act, we are not
convinced that Industrial Commission, which deals only with the
WCA, requires us to hold that a county is not a “person” under the
SWA. Moreover, section 13-20-113(2)(a) grants the Department
enforcement authority over not just persons, but also over any “site
and facility.” While the terms “site” and “facility” are not
individually defined, an “appropriate site or facility” is one for which
a certificate of designation — as provided in section 30-20-105,
C.R.S. 2019 — has been obtained. La Plata County — or its
predecessors — had to follow some version of the SWA in order to
lawfully operate the landfill.
¶ 23 Even absent the broadly defined “person,” the parties do not
dispute that the landfill nevertheless qualifies as a facility under the
SWA. The SWA states that, whenever the Department finds a
facility is in violation of the SWA, it may “issue an order requiring
that the site and facility or person comply with any such
requirement, rule, or certificate of designation.” § 30-20-113(2)(a)
(emphasis added); see also § 30-20-110(1)(b), C.R.S. 2019 (requiring
14
that “sites and facilities shall comply with the health laws,
standards, rules, and regulations . . .”). Thus, the plain language of
the statute authorizes the Department to issue an order to those
who own or operate a facility to comply with the SWA. See McCool
v. Sears, 186 P.3d 147, 150 (Colo. App. 2008) (“We must give effect
to each statutory word and construe the statute as a whole, giving
its terms consistent, harmonious, and sensible effect, while
avoiding an illogical or absurd result.”); see also Dep’t of Pub.
Health and Env’t Reg. 1.2, 6 Code Colo. Regs. 1007-2 (defining
“operator” and “owner”).
¶ 24 Accordingly, we conclude that the SWA’s use of the term
“association of persons” is susceptible of multiple reasonable
interpretations. See Andrews, ¶ 21. We next consult the SWA’s
legislative history to determine if it sheds any light on the
Department’s power to bring enforcement actions against counties.
2. Legislative History
¶ 25 The General Assembly enacted the SWA in 1967, and the
definition of “person” was largely the same as it is today.5 Ch. 358,
5 The only difference between the original and current definitions is
that the original did not include “board of a metropolitan district or
15
sec. 1, § 36-23-1, 1967 Colo. Sess. Laws 759. The General
Assembly first amended the SWA in 1971, but this amendment
made no changes to the definition of “person.” See Ch. 103, sec. 2,
§ 36-23-1, 1971 Colo. Sess. Laws 340.
¶ 26 In 1980, the legislature created an interim committee to
consider revising the SWA in response to the Federal Resource
Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901-
6991 (2018).6 That committee published a report in 1980
recommending, among other things, that the General Assembly
“amplif[y]” the definition of “person” to include “governmental unit.”
Colorado Legislative Council, Report to the Colorado General
Assembly: Recommendations for 1981 Committee on: Hazardous
sanitation district.” See Ch. 358, sec. 1, § 36-23-1, 1967 Colo.
Sess. Laws 759.
6 In 1976, Congress expressed concern over the growing solid waste
disposal problem and recovery of usable materials in the United
States. As a result, Congress enacted the RCRA, Pub. L. No.
94-580, 90 Stat. 2795 (1976); 42 U.S.C. §§ 6901-6991 (2018). The
primary objectives of RCRA are to assist states in solid waste
management, address hazardous waste disposal issues, and
promote resource recovery and conservation. Congress specifically
wished “to promote the protection of health and the environment
and to conserve valuable material and energy resources[.]” 42
U.S.C. § 6902(a) (2018). Although solid waste management is left to
state government, Congress envisioned that there would be federal
financial and technical assistance through RCRA.
16
Waste, Research Pub. No. 254, at 25 (Dec. 1980). The report also
recommended defining “governmental unit” to include counties. Id.
at 24. However, the General Assembly did not then act on the
committee’s recommendations.
¶ 27 In 1985, the General Assembly amended the SWA to allow for
collection of civil penalties for the illegal dumping of solid waste.
Ch. 254, sec. 1, § 30-20-113(2), 1985 Colo. Sess. Laws 1067. When
considering this amendment, the General Assembly also
contemplated allowing civil penalties for any violation of the SWA,
not just illegal dumping. In the first version of the bill, the
Department would have had the authority to issue compliance
orders for all violations of the SWA and collect civil penalties. H.B.
85-1077, 55th Gen. Assemb., 1st Reg. Sess. (as introduced 1985),
https://perma.cc/5WBC-QFZA. Collected civil penalties would
have been awarded to the counties or municipalities in which
violations occurred unless “the county or municipality is
responsible for the violation,” in which case the penalties would
have gone to the state’s general fund. Id. The General Assembly
ultimately removed this language from the bill due to rural counties’
concerns about increasing the Department’s authority under the
17
SWA. Hearing on H.B. 85-1077 before the S. Comm. on Local Gov’t,
55th Gen. Assemb., 1st Sess. (April 3, 1985).
¶ 28 However, in 1998, the General Assembly amended the SWA to
allow the Department to issue compliance orders for any violation of
the SWA without exempting cities, counties, or any other entities.
Ch. 236, sec. 11, § 30-20-113, 1998 Colo. Sess. Laws 884-86.
Further, in 2009, the General Assembly amended the SWA to
increase maximum allowable civil penalties and to authorize the
Department to enforce compliance orders through administrative
law courts. Ch. 301, sec. 1, § 30-20-113, 2009 Colo. Sess. Laws
1603-07. In four fiscal notes issued in relation to the 2009 bill, the
following language appears in addressing the impact of the
amendments on local governments:
Municipalities and counties may have
increased revenue from penalties assessed for
violations of solid waste disposal. In addition,
local government-owned waste facilities would
be subject to increased penalties should they
violate [the Department’s] compliance orders.
E.g., Colo. Legislative Council Staff, Final Fiscal Note Concerning
Increased Penalty Authority for the Department of Public Health
18
and Environment for Violations of Solid Waste Disposal Laws 2
(June 10, 2009), https://perma.cc/RHH2-3AK9.7
¶ 29 Accordingly, we conclude that the General Assembly’s increase
of the Department’s authority under the SWA over time — as also
reflected in the language contained in the 2009 fiscal notes —
demonstrates the General Assembly’s intent that the Department
have the power to bring enforcement actions against waste-facilities
owned or operated by cities or counties. While the General
Assembly never amended the definition of “person” under the SWA
to include counties expressly, its subsequent amendments and
related notes show the General Assembly recognized that counties
and other governmental units are subject to enforcement actions
under the SWA.8 See id. A different interpretation of “person”
7 We fully recognize that fiscal notes do not have the full weight of a
legislative act, as they are not drafted by legislators, are not subject
to vote, and are not part of the bill. However, to the extent they
provide a glimpse into what was known at the time the amendment
was being considered, they are helpful to use as we try to discern
the General Assembly’s knowledge and intent. See, e.g., People in
Interest of G.M., 844 P.2d 1341, 1344 (Colo. App. 1992) (considering
fiscal notes in determining the General Assembly’s intent regarding
amendments to the Children’s Code).
8 Even the federal government is not immune from federally
authorized state enforcement actions. See, e.g., United States v.
Colorado, 990 F.2d 1565, 1579 (10th Cir. 1993).
19
would create an absurd result by allowing counties to avoid
complying with the SWA and to evade oversight by the Department.
See Frasier, 90 P.3d at 811.
3. Immunity Under the CGIA
¶ 30 Having determined that the Department can bring
enforcement actions against counties under the SWA, we now
consider if the CGIA nonetheless bars the Department’s
enforcement actions against counties. The Department argues that
(1) the compliance order does not allege — and the Department has
not suffered — an injury and (2) the compliance order does not
bring a claim that lies or could lie in tort. Because the compliance
order is a public enforcement action that does not and could not lie
in tort, we agree with the Department.
a. Does the Compliance Order Allege an Injury?
¶ 31 “The CGIA applies when (1) the complaint alleges an injury
and (2) the claim lies in tort or could lie in tort.” Open Door
Ministries v. Lipschuetz, 2016 CO 37M, ¶ 15. Section 24-10-103(2),
C.R.S. 2019, of the CGIA defines “injury” as “death, injury to a
person, damage to or loss of property, of whatsoever kind, which, if
inflicted by a private person, would lie in tort or could lie in tort
20
regardless of whether that may be the type of action or the form of
relief chosen by a claimant.” “The nature of the injury alleged —
not the relief requested — is the primary inquiry to determine
whether the CGIA applies to the claim.” Open Door, ¶ 16.
¶ 32 The district court concluded that the mere existence of
elevated levels of vinyl chloride in the groundwater constituted an
injury under the CGIA. Specifically, the district court reasoned that
a private party would have a claim for injury if the pollution had
been detected in groundwater used for a domestic well. Thus, the
district court concluded that the Department must “have some
colorable claim for injury when groundwater belonging to the public
is similarly contaminated.”
¶ 33 Even assuming that there is an injury, we conclude that the
Department’s enforcement action via the compliance order does not
bring a claim that lies or could lie in tort.
b. The Compliance Order Does Not Bring Claims that Lie or
Could Lie in Tort
¶ 34 Even if the State or the Department suffered an injury here,
the Department asserts that its compliance order does not bring a
claim that lies or could lie in tort. The Department argues the
21
compliance order is a regulatory enforcement action based in the
state’s police powers that (1) does not impose a duty or (2) imposes
a nontortious statutory duty. Because enforcement actions under
the SWA are public actions that do not seek to compensate the
state for personal injuries or specific property damage, we hold that
the compliance order does not bring claims that lie or could lie in
tort.9
¶ 35 In City of Colorado Springs v. Connors, the Colorado Supreme
Court held that the CGIA does not bar claims against public entities
9 In addition to common law theories, federal laws establish liability
for injury to natural resources and authorize Colorado’s Natural
Resource Trustees (Trustees) to act on behalf of the public and
recover damages for the restoration of those injured resources. See,
e.g., Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601(6), 9607(a),
9607(f)(2)(B), and 9611(b) (2018); Oil Pollution Act of 1990 (OPA), 33
U.S.C. §§ 2701-2719 (2018); Clean Water Act (CWA), 33 U.S.C.
§§ 1251-1387 (2018). Colorado’s Attorney General, the Executive
Director of the Colorado Department of Public Health and
Environment, and the Executive Director of the Department of
Natural Resources — or their delegates — serve as the
Trustees. They act on behalf of the public when Colorado’s natural
resources are injured or destroyed as a result of an oil spill or
release of hazardous substances. See, e.g., Colo. Dep’t of Public
Health & Env’t v. United States, 381 F. Supp. 3d 1300, 1305 (D.
Colo. 2019); Complaint at ¶ 5, United States v. Suncor Energy USA
Inc., 2013 WL 6042392 (D. Colo. Nov. 15, 2013) (No. 1:13-cv-3109).
The Department’s enforcement activities here do not seek natural
resource damages.
22
for restitution and back pay under the Colorado anti-discrimination
statutes. 993 P.2d at 1173-74. Considering the nature of the
plaintiff’s injury and the relief sought, the court reasoned that the
plaintiff’s discrimination claims could not lie in tort because they
were equitable in nature and did not seek to compensate the
plaintiff for personal injuries. Id. at 1175. Later cases have limited
the scope of this holding, stating that “the nature of the relief is not
dispositive as to the question of whether a claim lies in tort.”
Robinson, 179 P.3d at 1006; see also Brown Grp., 182 P.3d at 691
(“[W]e have never suggested that claims for relief developed and
historically administered by courts of chancery or equity, rather
than courts of law, necessarily fall outside the coverage of the
[CGIA].”).
¶ 36 In Colorado Department of Transportation v. Brown Group
Retail, Inc., the Colorado Supreme Court stated that the CGIA
“encompasses all claims against a public entity arising from the
breach of a general duty of care, as distinguished from contractual
relations or a distinctly non-tortious statutorily-imposed duty.” 182
P.3d at 691. Nontortious statutory duties are distinct from general
duties of care because the former seek to implement broad policy
23
while the latter primarily seek to compensate individuals for
personal injuries. See id.; see also Robinson, 179 P.3d at 1006-07.
The court in Brown Group later raised the possibility that the state’s
hazardous waste statutes might create a nontortious statutory duty
but declined to decide that issue. 182 P.3d at 691.
¶ 37 We conclude that the SWA imposes a nontortious statutory
duty on solid waste facility operators to comply with the substantive
provisions of the SWA. See § 30-20-113. Like the civil rights
statute in Connors, which the legislature intended to address
“constitutionally based concerns of equality rather than mere
compensation for personal injury,” Robinson, 179 P.3d at 1006-07
(discussing Connors), the SWA was not designed to compensate
individual claimants. Rather, it seeks to redress solid waste
management practices that impose “significant public health risks,
environmental hazards, and long-term liability for the citizens of the
state.” § 30-20-100.5(1)(b); see also Connors, 993 P.2d at 1173-74.
And while the SWA authorizes the Department to seek injunctions
and administrative or civil penalties for violations of the act, see
§ 30-20-113(b)(I), these remedies are equitable and punitive,
respectively, and do not seek compensation for personal injuries or
24
specific property damage, see Robinson, 179 P.3d at 1006 (holding
that the relief requested is “an aid in understanding the duty
breached or the injury caused to determine if the claim lies or could
lie in tort”); see also C.K. v. People, 2017 CO 111, ¶ 16 (holding that
an award of attorney fees for failure to comply with discovery rules
was a punitive sanction and not a tort under the CGIA).
¶ 38 La Plata argues that the SWA creates a duty in tort because,
unlike the civil rights employment claim in Connors, enforcement
actions under the SWA have their origin in common law public
nuisance. Specifically, La Plata argues that the SWA codifies
common law public nuisance claims that the Department, counties,
and municipalities can bring against private solid waste facility
operators.
¶ 39 We acknowledge that the SWA states that solid waste facilities
that violate the act “shall be deemed a public nuisance,” § 30-20-
113(3), and that some authorities consider public nuisance claims
to be torts. See, e.g., Restatement (Second) of Torts § 821B,
Westlaw (database updated Oct. 2019). But a statutorily authorized
public enforcement action to abate hazardous environmental
conditions that does not seek compensation for personal injuries or
25
specific property damage is not a tort. See Hoery v. United States,
64 P.3d 214, 215 n.5 (Colo. 2003) (defining private nuisance as a
tort and public nuisance as an “invasion of public rights”); see also
Smillie v. Cont’l Oil Co., 127 F. Supp. 508, 510 (D. Colo. 1954)
(applying Colorado law and explaining the difference between an
invasion of personal rights and a nuisance); Freeman v. Grain
Processing Corp., 848 N.W.2d 58, 84 (Iowa 2014) (recognizing
“common law and nuisance actions have a different purpose than
the regulatory regime established by the Clean Air Act”); Thomas W.
Merrill, Is Public Nuisance A Tort?, 4 J. Tort L. 1, 6 (2011)
(distinguishing “public actions” from “torts” and arguing that public
nuisance claims are public actions, not torts). Torts generally seek
to enforce private rights, but the compliance order in this case
seeks to enforce the rights of the general public. See Merrill, 4 J.
Tort L. at 8 (“Tort actions, as generally understood, are nearly
always designed to protect private rights, not rights of the general
public.”).
¶ 40 Our holding is consistent with the legislature’s intent
expressed in Part II.B that the Department have the power to bring
enforcement actions against counties. To hold otherwise would
26
prevent the Department from enforcing the provisions of the SWA
on publicly maintained solid waste facilities, which make up most
of the solid waste facilities in Colorado. See Pepper, 145 P.3d at
657 (“[W]e interpret conflicting statutes in a manner that
harmonizes [them].”).
¶ 41 Accordingly, we conclude that the district court erred by
holding that the compliance order was a claim that lies or could lie
in tort and that the CGIA stands as an obstacle to SWA
enforcement. See Connors, 993 P.2d at 1177.
III. Cross-Appeal
¶ 42 La Plata argues that the district court’s June 20, 2017, order
erroneously held that La Plata’s CGIA defense qualified for
automatic interlocutory appeal but its SWA defense did not.
Specifically, La Plata argues that, because the district court held
the CGIA defense qualified for interlocutory appeal, the SWA
defense should have qualified as well. Further, La Plata objects to
the district court’s application of section 24-4-106(8) in its July 9,
2018, order, which held that La Plata failed to show it would suffer
irreparable injury from the OAC’s rejection of the SWA defense.
27
Because La Plata’s cross-appeal is moot given our holding in the
Department’s appeal, we dismiss it.
A. Applicable Law and Standard of Review
¶ 43 Generally, appellate courts only have jurisdiction over appeals
from final judgments. § 13-4-102(1), C.R.S. 2019; Allison v. Engel,
2017 COA 43, ¶ 23. However, Rule 54(b) allows a trial court to
enter a final judgment on one or more claims in a multiple-claim
case, thus permitting immediate appeal of those judgments under
certain circumstances.10 Allison, ¶ 1. A trial court may certify a
case for appeal pursuant to Rule 54(b) if the court (1) rules on an
entire claim for relief; (2) ultimately disposes of the claim; and (3)
expressly determines that there is no just reason to delay an appeal
on the ruling. Galindo v. Valley View Ass’n, 2017 COA 78, ¶ 8.
¶ 44 We review de novo the legal sufficiency of a district court’s
Rule 54(b) certification. Allison, ¶ 25. However, we review a district
court’s determination regarding whether there is just reason to
delay certification under C.R.C.P. 54(b) for an abuse of discretion.
10Except for C.R.C.P. 16, C.R.S. 2019, and the filing deadlines for
motions for summary judgment under C.R.C.P. 56(c), C.R.S. 2019,
the Colorado Rules of Civil Procedure apply to matters before the
OAC. Dep’t of Pers. and Admin. Rule 15, 1 Code Colo. Regs. 104-1.
28
Id. (citing Lytle v. Kite, 728 P.2d 305, 308 (Colo. 1986)). A district
court abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, unfair, or based on an erroneous view of the law. Id.
¶ 45 Because this case involves administrative proceedings, we
must also consider the APA, sections 24-4-101 to -108, C.R.S.
2019. Under the APA, only final agency actions are subject to
judicial review. § 24-4-106(2). Courts review final agency actions
under section 24-4-106(7), which allows a court to overturn a final
agency action if it was arbitrary or capricious, contrary to law,
violative of constitutional rights, or an abuse of discretion.
However, under limited circumstances, a court may intervene in
ongoing administrative proceedings if an agency action (1) causes
irreparable injury and (2) clearly exceeds statutory or constitutional
jurisdiction or authority. § 24-4-106(8); Envirotest Sys., Corp. v.
Colo. Dep’t of Revenue, 109 P.3d 142, 144 (Colo. 2005).
¶ 46 When a court rule and a statute conflict, we consider whether
the affected matter is “procedural” or “substantive.” People v. G.S.,
2018 CO 31, ¶ 32 (citing Borer v. Lewis, 91 P.3d 375, 380-81 (Colo.
2004); People v. Wiedemer, 852 P.2d 424, 436 (Colo. 1993)). If an
affected matter is procedural, the court rule controls; if the matter
29
is substantive, the statute controls. Id. “[R]ules adopted to permit
the courts to function and function efficiently are procedural
whereas matters of public policy are substantive and are therefore
appropriate subjects for legislation.” Id. (quoting Wiedemer, 852
P.2d at 436).
B. Analysis
¶ 47 The district court’s June 20, 2017, order considered whether
the OAC erred by denying the parties’ joint motion under Rule 54(b)
for certification of the OAC’s order denying La Plata’s motion. The
district court ruled that, under section 24-10-108, La Plata could
immediately appeal the CGIA defense as a final judgment.11
Specifically, the district court concluded that Rule 54(b) certification
is unnecessary for orders regarding governmental immunity
because all decisions regarding government immunity are final
judgments. Further, because the OAC’s decision regarding the
CGIA defense was final and thus immediately appealable, the
district court did not consider — and need not have considered —
11Section 24-10-108 states that any decision on a motion regarding
governmental immunity “shall be a final judgment and shall be
subject to interlocutory appeal.”
30
whether the OAC erred by denying Rule 54(b) certification for the
CGIA defense under section 24-4-106(8).
¶ 48 The district court next considered if the OAC erred by denying
Rule 54(b) certification to the SWA defense. However, the district’s
court analysis of this issue was unnecessary because whether the
OAC erred in applying Rule 54(b) to the SWA defense for appeal is
irrelevant.
¶ 49 Section 24-4-106(8) governs appeals of nonfinal agency
actions, and the OAC’s decision regarding the SWA defense was a
nonfinal action. Section 24-4-106(8) reflects a legislative policy
judgment that appeals of nonfinal agency actions meet a higher
standard of review than ordinary civil interlocutory appeals under
Rule 54(b). See State ex rel. Meyer v. Ranum High Sch., 895 P.2d
1144, 1145 (Colo. App. 1995) (holding that the statutory injunction
standard in section 1-45-113(2)(c), C.R.S. 1994, of the Campaign
Reform Act, which mandated injunctions against violators of the
act, controlled over C.R.C.P. 65, which requires a showing of
irreparable harm). Thus, regardless of certification under Rule
54(b), the APA allowed the district court to consider the SWA
defense under section 24-4-106(8). See G.S., ¶ 32.
31
¶ 50 In any event, La Plata’s objections regarding the SWA defense
are now moot. To resolve the Department’s appeal, we had to
consider, de novo, whether the SWA allows the Department to bring
enforcement actions against counties. Having concluded that the
SWA allows such actions — and that the CGIA does not stand as an
obstacle — our holding renders La Plata’s attempt to appeal the
SWA defense — that counties are not “person[s]” under the SWA —
moot. See Bd. of Cty. Comm’rs v. Crystal Creek Homeowners Ass’n,
14 P.3d 325, 329 (Colo. 2000) (“[O]ur holding in the appeal renders
the cross-appeal . . . moot.”).
¶ 51 Accordingly, we dismiss La Plata’s appeal challenging the
district court’s June 20, 2017, order and the operative portions of
the July 9, 2018, order. See Crystal Creek, 14 P.3d at 329; Ranum
High Sch., 895 P.2d at 1145.
IV. Attorney Fees
¶ 52 In their respective appeals, the parties dispute whether La
Plata is entitled to attorney fees under section 13-17-201. We
previously dismissed this portion of the appeal without prejudice for
lack of subject matter jurisdiction. Bd. of Cty. Comm’rs v. Colo.
Dep’t of Pub. Health, (Colo. App. No. 18CA1551, Mar. 4, 2019)
32
(unpublished order). We address the issue of attorney fees in a
separate opinion in Board of County Commissioners v. Colorado
Department of Public Health, (Colo. App. No. 19CA410, Mar. 26,
2020) (not published pursuant to C.A.R. 35(f)).
V. Conclusion
¶ 53 The district court’s judgment is reversed and La Plata’s cross-
appeal is dismissed in part.
JUDGE BERGER and JUDGE LIPINSKY concur.
33