January 20, 2018

Colorado Court of Appeals: Complaint Filed After Denial of Motion to Reconsider was Untimely

The Colorado Court of Appeals issued its opinion in Sterling Ethanol, LLC v. Colorado Air Quality Control Commission on Thursday, February 23, 2017.

Interlocutory Appeal—Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Sterling Ethanol, LLC and Yuma Ethanol, LLC (collectively, 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 Colorado Air and Pollution Control Division (Division). After the Division issued two compliance orders addressing the Companies’ alleged violations of their air permits, Companies sought timely administrative review from the Air Quality Control Commission (Commission), which operates pursuant to the Colorado Air Pollution Prevention and Control Act (APPCA). Following an evidentiary hearing, the Commission issued a final order affirming the Division’s orders.

Companies filed a motion to reconsider, which the Commission denied. Companies then filed a complaint in the district court 69 days after the Commission issued its final order and 35 days after the Commission denied its motion to reconsider. The Commission filed a motion to dismiss for lack of subject matter jurisdiction, arguing the complaint was untimely filed. The district court denied the motion. The district court, on the Commission’s request, certified for review the question whether the State Administrative Procedure Act (APA), the APPCA, and the Commission’s procedural rules, read together, compel the conclusion that the complaint was untimely filed, thus depriving the court of appeals of subject matter jurisdiction.

The court held that the district court erred in denying the motion to dismiss because Companies’ complaint was untimely. The party seeking judicial review must file a complaint within 35 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 required such a conclusion.

The order was reversed and the case was remanded for entry of an order dismissing the action.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: School District had Clear Duty to Obtain Majority Support for Innovation Plans

The Colorado Court of Appeals issued its opinion in Denver Classroom Teachers Association v. City & County of Denver School District No. 1 on Thursday, June 4, 2015.

Innovation Schools Act of 2008—Majority Support—Jurisdiction—CRCP 106(a)(2)—Administrative Procedures Act.

Appellants (collectively, Associations) brought this action claiming that appellees (collectively, DPS) violated the Innovation Schools Act of 2008 by implementing innovation plans at eleven district schools without first obtaining approvals for the plans from the majority of teachers employed at the schools. The district court granted relief with respect to two schools and denied any relief with respect to the remaining nine schools.

On appeal, DPS asserted that the district court lacked jurisdiction to entertain the Associations’ action. CRCP 106(a)(2) specifically authorizes district courts to consider whether to compel a governmental body, board, or officer to perform a duty required of it by law. Therefore, the court had jurisdiction to consider the merits of the Associations’ claims.

DPS also contended that the Associations had another available remedy under the Administrative Procedure Act and failed to exhaust it. However, the state board’s review was limited in scope to determine whether an innovation plan is likely to result in a decrease in academic achievement within the innovation school and whether it is fiscally feasible.Therefore, the Associations could not have challenged the innovation plans on the grounds relied on in the district court or on appeal. Accordingly, the Associations were not required to seek judicial review of the state board’s designations before seeking mandamus relief.

The Associations argued that they had a clear right to relief and DPS had a clear duty to obtain evidence of approval from teachers, staff, and School Accountability Councils (SACs) regarding the innovation plans. Such majority support by a majority of teachers, staff, and SACs is clearly mandated by statute, and this provision applies to both new and existing schools. However, a new school’s innovation plan cannot meet the requirements of subsection 104 of the Innovation Schools Act until the school has commenced operations and its plan has received the necessary majority consents from teachers, administrators employed at the school, and the school’s SAC, which includes parents of students enrolled at the school. As a result, a new school that has neither teachers nor students cannot seek innovation status. Here, DPS failed to obtain majority support with respect to the nine schools at issue. The judgment was affirmed with respect to the two schools and reversed as to the remaining nine schools, and the case was remanded to the district court for further proceedings.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Administrative Procedure Act Applies to Judicial Review of Determination of Secretary of State

The Colorado Court of Appeals issued its opinion in Marks v. Gessler on Thursday, August 1, 2013.

Help America Vote Act—Administrative Complaint—State Administrative Procedure Act—Summary Judgment—Standing—42 USC § 1983.

In this case involving the filing of a citizen complaint under the Colorado Help America Vote Act, CRS §§ 1-1.5-101 to -106 (state HAVA), and its federal counterpart, the Help America Vote Act, 42 USC §§ 15301 to 15545 (federal HAVA), defendants Scott Gessler, in his official capacity as the Colorado Secretary of State (Secretary), the Colorado Department of State (CDOS), and Judd Choate, in his official capacity as a person representing or acting on behalf of the CDOS, appealed the district court’s judgment in favor of plaintiff Marilyn Marks. The judgment was affirmed.

Marks filed an administrative complaint with the Secretary, alleging her belief that violations of Title III of the federal HAVA had occurred or were occurring in the 2010 general election conducted in Saguache County, Colorado. Without holding a hearing, defendants dismissed Marks’s complaint for lack of standing. The district court held that defendants had erred in dismissing Marks’s complaint on standing grounds and that she was entitled to a hearing.

On appeal, defendants asserted that the district court erred in proceeding under the state Administrative Procedure Act (APA) to summarily reverse the Secretary’s dismissal of Marks’s administrative complaint and remand the case for further proceedings. Although the APA rules and procedures do not apply to the Secretary’s resolution of a state HAVA administrative complaint at the agency level, the APA does apply to judicial review in the district court of the Secretary’s determination. Thus, the district court did not err in considering Marks’s first and third claims under the APA’s principles of judicial review.

Defendants also contended that the district court was not empowered to grant judgment on the pleadings or summary judgment in favor of Marks on her first and third claims absent a motion requesting such relief. However, it was not reversible error for the district court to proceed essentially on summary judgment without a dispositive motion, given the relevant part of the agency record before the court and lack of disputed issues of fact before the court.

Defendants also argued that the district court erred in concluding that they should not have dismissed Marks’s state HAVA administrative complaint for lack of standing, and that she was entitled to a hearing on the issues she alleged in that complaint. The federal and state requirements for standing to file an administrative HAVA complaint conflicted, and therefore, the federal standing requirement controlled, which entitled Marks to a hearing. Furthermore, the district court had subject matter jurisdiction to determine whether a conflict existed between the state HAVA and the federal HAVA.

Defendants further contended that Marks lacked standing to maintain her first claim for relief, in which she sought judicial review of the administrative determination. Any person who believes a violation of Title III of the federal HAVA has occurred has a right to file a complaint. Here, Marks alleged a sufficient injury in fact. Thus, she satisfied the jurisdictional prerequisites for standing, as well as the standing requirements to obtain judicial review of an agency action under the APA and HAVA.

Marks contended that the district court erred in dismissing her 42 USC § 1983 claims against the Secretary and co-defendant Choate. Marks alleged in her district court complaint that by dismissing her administrative complaint on state-law standing grounds, defendants had deprived her of a federally secured right, under 42 USC § 15512(a)(2)(B), to file a HAVA complaint using Colorado’s administrative complaint procedure. She also asserted that by dismissing her complaint, defendants had deprived her of her federally secured right, under 42 USC § 15512(a)(2)(E), to receive a hearing on the record in connection with her state HAVA complaint. Marks claims were properly dismissed, however, because §§ 15512(a)(2)(B) and 15512(a)(2)(E) do not create federal rights of action enforceable under § 1983.

Summary and full case available here.

Tenth Circuit: EPA Did Not Act Arbitrarily or Capriciously in Denying Petition for Objection to Permit Issued to Coal-Fired Power Station

The Tenth Circuit Court of Appeals published its opinion in Wildearth Guardians v. United States Environmental Protection Agency on Tuesday, July 23, 2013.

Petitioner Wildearth Guardians sought review of an order of the Environmental Protection Agency denying in part Petitioner’s petition for an objection to an operating permit issued by the Colorado Department of Public Health and Environment (CDPHE) to Intervenor Public Service Company of Colorado for its coal-fired power station located in Colorado. In its petition for an objection, Petitioner argued that the permit needed to include a plan to bring the power station into compliance with the Clean Air Act’s Prevention of Significant Deterioration (PSD) requirements. Petitioner contended these PSD requirements, which apply to the construction or “major modification” of a stationary source of air pollution had been triggered when the station underwent major modifications. For support, Petitioner relied in part on a Notice of Violation (NOV) issued to Intervenor by the EPA in 2002. However, the EPA denied Petitioner’s petition for an objection, holding that the NOV was insufficient to demonstrate noncompliance with the Clean Air Act and that Petitioner’s additional evidence also failed to demonstrate a violation. Petitioner sought review of the EPA’s denial of the petition.

The Tenth’s Circuit’s review of the EPA’s order is governed by the Administrative Procedure Act, and the court accordingly will not set aside the agency’s decision unless it is procedurally defective, arbitrary or capricious, or manifestly contrary to statute.

The EPA must issue an objection if a petitioner demonstrates that the permit is not in compliance with the requirements of the Clean Air Act. A central dispute in this case was the question of what was required for the petitioner to “demonstrate” noncompliance. To resolve the dispute, the court had to first consider whether the agency’s interpretation of this requirement was entitled to any deference.

To the extent a statute speaks clearly to a question at issue, the court must give effect to the unambiguously expressed intent of Congress. If, however, a statute is silent or ambiguous with respect to an issue, the agency’s interpretation of the statute is entitled to some degree of deference. Indeed, the statute at issue does not resolve the questions that are part and parcel of the Administrator’s duty to evaluate the sufficiency of this petition: the type of evidence a petitioner may present and the burden of proof guiding the Administrator’s evaluation of when a sufficient demonstration of noncompliance has occurred. The statutory silence suggests that Congress delegated to the EPA some discretion in determining whether a petitioner has presented sufficient evidence to prove a permit violates clean air requirements, and thus the court concluded some level of deference was warranted.

Viewing the record as a whole, the Tenth Circuit was not persuaded that the EPA acted arbitrarily or capriciously in holding that Plaintiff had not demonstrated noncompliance. Thus, under its deferential standard of review, the court AFFIRMED the EPA’s denial of the petition on this ground.

Colorado Court of Appeals: Death Row Inmate’s Challenge to Procedure for Lethal Injection Denied

The Colorado Court of Appeals issued its opinion in Dunlap v. Colorado Department of Corrections on Thursday, April 25, 2013.

Death by Lethal Injection—Administrative Procedure Act—CRS § 17-1-111.

Nathan J. Dunlap, a death row inmate in the custody of the Colorado Department of Corrections (DOC), appealed the district court’s judgment denying his challenge to the DOC’s regulation establishing the procedure for carrying out the death penalty by lethal injection. The judgment was affirmed.

Colorado law provides for imposition of the death penalty by lethal injection. The implementation of such a sentence is entrusted to the DOC. The Executive Director promulgated Administrative Regulation 300-14 (regulation), effective June 1, 2011, “to establish procedures, consistent with Colorado statutes, governing death penalty executions.”

Dunlap was sentenced to death for murdering four people at a Chuck E. Cheese restaurant in Aurora in 1993. He filed a complaint under § 24-4-106(4) of the Administrative Procedure Act (APA), claiming that the DOC had violated the APA in promulgating this regulation. Specifically, he alleged that the DOC had failed to comply with the rule-making procedures of § 24-4-103.

Defendants moved to dismiss under CRCP 12(b)(1) and (5). The subject matter argument was based on § 17-1-111, which exempts the regulation from the procedural requirements of § 24-4-103 of the APA. The district court granted the motion to dismiss for lack of subject matter jurisdiction.

On appeal, Dunlap argued that § 17-1-111 should not apply because the Executive Director’s statutory authority to administer the death penalty is found in Title 18 of the Colorado Revised Statutes, not Title 17. The Court of Appeals disagreed. The fact that the source of the authority to carry out a death sentence is found in Title 18 is not dispositive of whether the regulation relates to a matter within Title 17.

Dunlap also argued that the phrase “placement, assignment, management, discipline, and classification of inmates” in § 17-1-111 has nothing to do with the implementation of a death sentence. The Court disagreed. In the context of Title 17, this language clearly encompasses determinations concerning the conditions under which sentences served by DOC inmates are to be carried out. The judgment was affirmed.

Summary and full case available here.