Peabody Sage Creek Mining, LLC v. Colorado Dep’t of Public Health and Environment
2020 COA 127. No. 19CA0990. Final Agency Action—Water Quality Control Act—Subject Matter Jurisdiction.
August 20, 2020
Peabody Sage Creek Mining, LLC (Peabody) owns an inactive mine. The Colorado Water Quality Control Division (the water division), an entity within the Colorado Department of Public Health and Environment (CDPHE), renewed and reissued a permit authorizing Peabody to discharge water from the mine. Peabody sought reconsideration of certain terms of the permit. The water division granted the request and CDPHE referred the matter to an administrative law judge (ALJ).
After a hearing, the ALJ issued an initial decision modifying the permit, which included a notice of the right to appeal by filing exceptions to CDPHE. Both parties filed exceptions. The CDPHE executive director then heard the administrative appeal and reversed the ALJ’s initial decision in a final agency order. Peabody filed a complaint in district court for judicial review of a final agency action 35 days later. Peabody invoked jurisdiction under the Colorado Administrative Procedure Act (APA), which allowed 35 days to commence an action for judicial review. The water division filed a CRCP 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, arguing that the Water Quality Control Act (Act) applied, which provided 30 days to commence an action for judicial review. Deeming the final agency order to be an act of the water division, the district court concluded that the Act provided the exclusive means for judicial review and accordingly dismissed, with prejudice, Peabody’s complaint as untimely.
On appeal, Peabody argued that CDPHE’s action is not an undertaking of the water division. Here, CDPHE acted for the water division in the final step of the administrative appeal of the challenged permit, and the final agency order was the last action taken in the administrative proceedings before Peabody filed its complaint. Therefore, the time to seek judicial review of the action was governed by the Act rather than the APA. And because the Act required Peabody to seek judicial review within 30 days of the final order, the trial court properly dismissed the complaint as untimely.
The parties agreed that the dismissal “with prejudice” was error and requested that the order be remanded with directions to dismiss “without prejudice.”
The order was affirmed insofar as it concluded that the complaint was untimely. The “with prejudice” portion of the dismissal was reversed and the case was remanded with directions to dismiss the action without prejudice.
Final Agency Action, Water Quality Control Act, Subject Matter Jurisdiction