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
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 affirm.
2 This appeal arises from the Commission's approval of
Extraction's Form 2A permit applications.
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 School buildings.
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
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 Petitioners' appeal.
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 ("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. 404-1.
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 (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 seek judicial review of permit
approvals. The Commission's brief ignores Rule 305.e. (3)
- designating an approved Form 2A a final Commission decision
subject to judicial review - altogether.
15 We agree with the Commission that the APA alone does not
provide a substantive claim for relief. See Romer v.
Bd. of Cty. Comm'rs, 956 P.2d 566, 576 (Colo. 1998)
("[T]he APA does not create substantive legal rights on
which a claim for relief can be based."). However, the
Act provides that any "final order of the commission
shall be subject to judicial review in accordance with
section 24-4-106" where the relevant APA provision
states that parties "adversely affected or aggrieved by
agency actions" may seek judicial review. §
34-60-111 (citing § 24-4-106). Commission Rule 305.e.
(3) likewise recognizes, without limitation, that when the
Commission's Director approves a Form 2A application, his
decision is deemed to be a final Commission decision subject
to judicial review. Because Petitioners established
injuries-in-fact to legally protected interests under the APA
and section 34-60-111 of the Act, the district court did not
err in holding that Petitioners had standing to seek judicial
review of the Commission's permit
16 To the extent that the Commission relies on Rule 503.b.
and GVC, both are inapplicable here because
Petitioners did not request a hearing. GVC held that
non-permit applicants may not seek a hearing under section
34-60-108 because the term "order" in that
provision does not encompass permits. GVC, ¶
18. This is a separate issue from whether section
34-60-111's judicial review authorization of "final
orders" encompasses permits. GVC also did not
foreclose the possibility that, for APA purposes, a permit
can be an order. See GVC, ¶ 13.
17 Petitioners are members of organizations that have
aesthetic, recreational, health, and environmental interests
in the proposed development location, and they offered
numerous declarations from members - including nearby
residents with children attending Bella Romero - on how the
expected air and noise pollution from Extraction's
proposed development would negatively impact their interests.
Thus, Petitioners established that the Commission's
approval of Extraction's Form 2A applications would
create an injury-in-fact. See Ainscough, 90 P.3d at
856; Nat'l Wildlife Fed'n v. Cotter Corp.,
665 P.2d 598, 604 (Colo. 1983) (holding that unlike members
of an organization with a mere "interest in a
problem" that do not have standing, organization members
who face threat of injury have standing because their
"alleged injuries are to personal health, and are
sufficient to establish that [they] are adversely affected or
aggrieved"). This is so especially where Petitioners
effectively challenged the Commission's compliance with
the governing regulatory framework. See Nat'l Courier
Ass'n v. Bd. of Governors of Fed. Reserve
Sys., 516 F.2d 1229, 1241 (D.C. Cir. 1975)
("Private parties and reviewing courts alike have a
strong interest in fully knowing the basis and circumstances
of an agency's decision."); see also Geer v.
Stathopulos, 135 Colo. 146, 154, 309 P.2d 606, 611
(1957) (recognizing that a court reviewing agency action
should have the same information available to the agency to
allow the reviewing court to "be in the same position as
the agency" in considering "the problem
successively confronting agency and court").
18 The Commission's argument that the Act does not offer
Petitioners a legally protected interest - specifically that
section 34-60-111, which authorizes judicial review of
"final orders," does not encompass permits - is
unsupported by Colorado law. Cf. Dep't of Nat.
Res. Rule 305.e. (3), 2 Code Colo. Regs. 404-1. We are not,
of course, bound by an agency's interpretation that is
contrary to the plain meaning of the governing statute.
See People v. Rockwell, 125 P.3d 410, 420 (Colo.
2005). And, section 34-60-111 authorizes judicial review of
final orders "in accordance with" the APA, and the
APA defines an agency "order" as "the whole or
any part of the final disposition (whether affirmative,
negative, injunctive, or declaratory in form) by any agency
in any matter other than rule-making." §
24-4-102(10), C.R.S. 2018; see also Dep't of
Nat. Res. Rule 305.e. (3), 2 Code Colo. Regs. 404-1;
Marks v. Gessler, 2013 COA 115, ¶ 29
("[T]he APA serves as a gap-filler, and its provisions
apply to agency actions unless they conflict with a specific
provision of the agency's statute or another statutory
provision preempts the provisions of the APA.")
(citation omitted) (cert. granted June 23, 2014);
Roosevelt Tunnel, LLC v. Norton, 89 P.3d 427, 430
(Colo.App. 2003) (holding that because the relevant