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Board of County Commissioners of La Plata County v. Department of Public Health and Environment.

2021 CO 43. Nos. 20SC365 & 20SC367. Solid Wastes Disposal Act—Governmental Immunity—Regulatory Enforcement.

June 7, 2021

In these two related cases, the La Plata County Board of County Commissioners (County) challenged the Colorado Department of Public Health and Environment’s (Department) authority to bring an enforcement action against the County under the Solid Wastes Disposal Sites and Enforcement Act (SWA), CRS §§ 30-20-100.5 to -122.

The Supreme Court granted certiorari to consider the County’s contentions that the Department could not properly bring such an action against it because (1) the County is not a “person” within the meaning of the SWA, and therefore it is not the proper target of an SWA enforcement action; and (2) any such action is barred by the Colorado Governmental Immunity Act (CGIA), CRS § 24-10-106. The Court also granted certiorari to consider whether the County is entitled to recover its attorney fees as the prevailing party below.

The Court did not address the County’s first contention because it concluded that whether the Department is a “person” is irrelevant; the Department has the authority to bring an enforcement action against the County as an owner or operator of an allegedly noncompliant, abandoned landfill. As to the County’s second contention, the Court concluded that the Department’s enforcement action is not barred by the CGIA because such an action is not a claim for injury that lies in tort or could lie in tort. And because the County is no longer the prevailing party here, the Court concluded that it is not entitled to an award of its attorney fees.

Accordingly, the Court vacated the Court of Appeals division’s conclusion that the County is a “person” within the meaning of the SWA but otherwise affirmed its judgments.

Official Colorado Supreme Court proceedings can be found at the Colorado Supreme Court website.

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