Weld Air & Water, Sierra Club, NAACP Colorado State Conference, and Wall of Women, Plaintiffs-Appellants and Cross-Appellees,
Colorado Oil and Gas Conservation Commission, Defendant-Appellee and Cross-Appellant and Extraction Oil and Gas, Inc., Defendant-Appellee and Intervenor.
and County of Denver District Court No. 17CV31315. Honorable
Kenneth M. Laff, Judge.
Lynch, Wyatt Sassman, Sarah Matsumoto, Denver, Colorado, for
Plaintiffs-Appellants and Cross-Appellees.
J. Weiser, Attorney General, Kyle W. Davenport, Senior
Assistant Attorney General, David A. Beckstrom, Assistant
Attorney General, Denver, Colorado, for Defendant-Appellee
Brownstein Hyatt Farber Schreck, LLP, Mark J. Mathews, Julia
E. Rhine, Denver, Colorado, for Defendant-Appellee and
Judges: Opinion by JUDGE FOX. Freyre and
Welling, JJ., concur.
[¶ 1] Appellants, Weld Air & Water, Sierra Club,
NAACP Colorado State Conference, and Wall of Women
(Petitioners) and cross-appellee, the Colorado Oil and Gas
Conservation Commission (the Commission), appeal the district
court's judgment dismissing Petitioners' claim and
affirming the Commission's approval of two permits
Extraction Oil and Gas, Inc. (Extraction) requested within
Weld County. Petitioners appeal the permit approvals, and the
Commission cross-appeals the district court's judgment
that Petitioners had standing to seek judicial review. We
[¶ 2] This appeal arises from the
Commission's approval of Extraction's Form 2A permit
[¶ 3] In May 2016, Extraction filed two Form
2A applications with the Commission seeking approval to
conduct oil and gas operations in Greeley, Colorado at an
existing drilling site. The proposed site
— called the Vetting well pads — was
approximately 1360 feet from the Bella Romero Academy Middle
[¶ 4] In June 2016, the Commission accepted
public comments on Extraction's applications, including
comments from parents of the Bella Romero students, from
neighboring property owners, and from community and
environmental groups. Three concerns raised in the public
comments, and relevant to this appeal, were (1) the health
risk to Bella Romero students playing outdoors where the
proposed development was less than 1000 feet from the
school's playgrounds and fields; (2) Extraction's
emergency response plan given the proposed development's
proximity to the school; and (3) consideration of alternative
locations farther from the school. Petitioners asked the
Commission to deny the permit applications.
[¶ 5] On March 10, 2017, the Commission,
through its Director, approved Extraction's Form 2A
applications for the Vetting well pads. Petitioners then sued
in district court, arguing that the Commission acted
arbitrarily and capriciously in granting the permits —
because it failed to consider public comments — and
that its decision to grant the permits violated the
Commission's setback rules.
[¶ 6] On June 20, 2018, after finding that
Petitioners had standing to seek judicial review of the
Commission's permit approvals, the district court
affirmed the Commission's decision granting the permits.
[¶ 7] Because standing is a threshold issue,
we address the cross-appeal before addressing
[¶ 8] The Commission asserts that the
district court erred when it held that Petitioners had
standing to seek judicial review of the Commission's
authorization of Extraction's Form 2A permit
applications. We disagree.
Preservation, Standard of Review, and Applicable Law
[¶ 9] Petitioners contend that the
Commission cannot argue for the first time on appeal that
they lack standing to seek judicial review of Form 2A permit
approvals. Because questions of standing may be raised at any
time, we disagree. See Hickenlooper v. Freedom
from Religion Found., Inc., 2014 CO 77, ¶ 7, 338 P.3d
1002 (" Standing is a jurisdictional prerequisite that
can be raised any time during the proceedings." ).
[¶ 10] Because " standing involves a
consideration of whether a plaintiff has asserted a legal
basis on which a claim for relief can be predicated, the
question of standing must be determined prior to a decision
on the merits." Id. (citation omitted). In
other words, standing concerns a court's subject matter
jurisdiction; thus, it is a question we review de novo.
Friends of the Black Forest Reg'l Park, Inc. v. Bd.
of Cty. Comm'rs, 80 P.3d 871, 876 (Colo.App. 2003).
[¶ 11] Colorado's Administrative Procedure
Act (APA) provides judicial review for parties that are
" adversely affected or aggrieved" by "
[f]inal agency action." § 24-4-106(1)-(2), C.R.S. 2018.
To have standing, a party must suffer an injury-in-fact to a
legally protected interest; an " interest is legally
protected if the constitution, common law, or a statute,
rule, or regulation provides the plaintiff with a claim for
relief." Reeves v. City of Fort Collins, 170
P.3d 850, 851 (Colo.App. 2007). And while the injury-in-fact
cannot be overly indirect, incidental, or a remote, future
possibility, the injury may be intangible, such as an
aesthetic injury. Ainscough v. Owens, 90 P.3d 851,
856 (Colo. 2004).
[¶ 12] The Oil and Gas Conservation
Act (the Act) provides that " [a]ny rule,
regulation, or final order of the commission shall be subject
to judicial review in accordance with [the APA]." §
34-60-111, C.R.S. 2018 (citing § 24-4-106). And Commission
Rule 305.e.(3) states that if the approval of a Form 2A
" is not suspended . . . the issuance of the approved
Form 2 or Form 2A by the Director shall be deemed a final
decision of the Commission, subject to judicial appeal."
Dep't of Nat. Res. Rule 305.e.(3), 2 Code Colo.Regs.
[¶ 13] The Commission argues that the APA
— as a procedural act — and the Act do not grant
Petitioners a legally protected interest; therefore, they
cannot seek judicial review of the Commission's Form 2A
permit authorizations. The Commission contends that permits
are not " final orders" under section 34-60-111,
and thus are not subject to the Act's judicial review
provision. In making this argument, it relies on Colo.
Oil & Gas Conservation Comm'n v. Grand Valley
Citizens' All., 2012 CO 52, ¶ 3, 279 P.3d 646 (GVC),
which held that because permits are separately governed by
section 34-60-106(1)(f), C.R.S. 2018, section 34-60-108(2),
C.R.S. 2018, which provides that " [n]o rule,
regulation, or order . . . shall be made by the commission
without a hearing," does not apply to permits; thus, a
citizens group was not entitled to request a hearing on a
[¶ 14] The Commission argues that because
the APA treats permits as " licenses," section
24-4-104, C.R.S. 2018, applies instead, which only
contemplates judicial review for permit
applicants. Additionally, the Commission
contends that Rule 503.b. has expanded the class of persons
who may request a hearing on a Form 2A application to include
(1) the permit applicant, (2) the owners of the surface
rights, and (3) the local government with land use authority
over the proposed development. Dep't of Nat. Res. Rule
503.b., 2 Code Colo.Regs. 404-1. However, the Commission
reasons that because citizen groups like Petitioners are not
included in the three classes of persons entitled to request
a hearing, neither the APA, the Act, nor the Commission rules
give Petitioners a legally protected interest to ...