     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                              March 26, 2020

                                2020COA50

No. 18CA1551, Board v. Colorado Department of Public Health
and Environment — Government — Colorado Governmental
Immunity Act — Solid Wastes Disposal Sites and Facilities;
Administrative Law — State Administrative Procedures Act;
Torts

     In this proceeding, a division of the court of appeals considers

whether the Colorado Governmental Immunity Act (CGIA) prevents

the Colorado Department of Public Health and Environment (the

Department) from bringing an enforcement action against a county

under the Solid Waste Disposal Sites and Facilities Act (SWA). The

division concludes that the CGIA does not bar the Department’s

enforcement action because a statutorily authorized public

enforcement action to abate hazardous environmental conditions

that does not seek compensation for personal injuries or specific

property damage is not a tort claim or a claim that could lie in tort.
     The division also considers whether the district court erred by

holding that (1) the Office of Administrative Courts (OAC) did not err

by refusing to certify for interlocutory appeal under C.R.C.P. 54(b)

La Plata County Board of Commissioners’ (La Plata) argument that

a county is not a “person” under the SWA; and (2) La Plata failed to

show it would suffer irreparable injury from the OAC’s decision.

The division concludes that, because section 24-4-106(8), C.R.S.

2019, of the State Administrative Procedure Act governs appeals of

nonfinal agency actions, the district court did not need to decide

whether the OAC erred by applying Rule 54(b). Further, the

division concludes that La Plata’s cross-appeal is moot given the

division’s holding in the Department’s appeal.

     Accordingly, the division reverses the district court’s decision

holding that the CGIA bars the Department’s enforcement action

and dismisses, in part, La Plata’s cross-appeal.
COLORADO COURT OF APPEALS                                            2020COA50


Court of Appeals No. 18CA1551
La Plata County District Court No. 16CV30152
Honorable Suzanne F. Carlson, Judge


Board of County Commissioners of the County of La Plata, Colorado,

Plaintiff-Appellee and Cross-Appellant,

v.

Colorado Department of Public Health and Environment,

Defendant-Appellant and Cross-Appellee.


          JUDGMENT REVERSED AND APPEAL DISMISSED IN PART

                                  Division VII
                            Opinion by JUDGE FOX
                        Berger and Lipinsky, JJ., concur

                           Announced March 26, 2020


Asimakis D. Iatridis, LLC, Maki Iatridis, Boulder, Colorado, for Plaintiff-
Appellee and Cross-Appellant

Philip J. Weiser, Attorney General, David Kreutzer, First Assistant Attorney
General, Lukas Staks, Senior Assistant Attorney General, Denver, Colorado, for
Defendant-Appellant and Cross-Appellee

Nicolas Sarmiento, County Attorney, Conejos, Colorado for Amicus Curiae
Conejos County
¶1    The Colorado Department of Public Health and Environment’s

 (the Department) and the Board of County Commissioners of La

 Plata County’s (La Plata) dispute presents an issue of first

 impression — whether Colorado’s Governmental Immunity Act

 (CGIA) prevents the Department from bringing an enforcement

 action against a county under the Solid Waste Disposal Sites and

 Facilities Act (SWA). Because a public enforcement action under

 the SWA does not and could not lie in tort, we hold that the CGIA

 does not preclude the Department’s SWA enforcement against La

 Plata. Accordingly, we reverse the district court’s ruling on this

 issue.

¶2    La Plata also cross-appeals the district court’s denial of its

 request for interlocutory appeal of the Office of Administrative

 Court’s (OAC) ruling that La Plata is a “person” under the SWA. La

 Plata also cross-appeals the district court’s holding that La Plata

 did not suffer irreparable injury necessary to review the OAC’s

 ruling under section 24-4-106(8), C.R.S. 2019, of the State

 Administrative Procedure Act (APA). As explained below, we dismiss

 La Plata’s cross-appeal.



                                    1
                           I.   Background

¶3    La Plata County owns the Bayfield Landfill (the landfill), a solid

 waste landfill located in Bayfield, Colorado, and closed since 1994.

 Since 2004, groundwater monitoring tests at the landfill have

 shown elevated concentrations of vinyl chloride. The Department

 and La Plata collaborated to monitor and remediate the

 contaminated groundwater until 2016, when the Department

 issued a compliance order to La Plata pursuant to section 30-20-

 113(2), C.R.S. 2019, because La Plata refused to enter into an

 administrative order to address the groundwater contamination.

¶4    La Plata objected by motion to the compliance order as

 unnecessary and overly costly. It sought OAC review under the APA

 raising nine issues, including, as relevant here, that (1) the CGIA

 grants La Plata immunity from the compliance order (the CGIA

 defense) and (2) La Plata is not a “person” subject to the SWA (the

 SWA defense).1




 1 La Plata raised the CGIA and SWA defenses in a motion to void the
 unilateral administrative order (UAO). At the administrative phase
 of the proceedings, the parties referred to the compliance order as
 the “UAO.”
                                   2
¶5    The OAC denied La Plata’s motion, holding that the CGIA does

 not shield La Plata from the compliance order and that La Plata is a

 “person” subject to the SWA. The parties filed a joint motion

 seeking OAC certification of the order for interlocutory appeal under

 C.R.C.P. 54(b).2 The OAC denied the motion.

¶6    The parties then filed a joint motion for reconsideration,

 arguing that the OAC’s order on La Plata’s motion was not a final

 order because other issues before the OAC remained unresolved.

 The OAC partially granted the motion for reconsideration, clarifying

 that its order denying La Plata’s motion was a final order only

 regarding the CGIA and SWA defenses. However, the OAC again

 denied the parties’ request for certification for interlocutory appeal

 under Rule 54(b). The OAC stayed further proceedings, including

 La Plata’s challenge to the Department’s remedy, pending resolution

 of La Plata’s appeal.

¶7    La Plata appealed the OAC’s orders, and the district court

 conducted a bifurcated review to determine if the OAC erred by (1)


 2The rules of procedure for OAC state that, “[t]o the extent
 practicable, and unless inconsistent with these rules, the Colorado
 Rules of Civil Procedure apply to matters before the OAC.” Dep’t of
 Pers. and Admin. Rule 15, 1 Code Colo. Regs. 104-1.
                                    3
 refusing to certify for appeal its order denying La Plata’s motion and

 (2) denying La Plata’s motion. The district court conducted this

 two-part review because the parties insisted the first analysis was

 necessary to determine the appropriate standards of review to apply

 to the CGIA and SWA defenses in step two.

¶8    Applying section 24-4-106(8) of the APA, the district court first

 determined that the CGIA authorizes interlocutory appeals of

 governmental immunity claims. Thus, it concluded that whether

 the OAC certified that issue for interlocutory appeal under Rule

 54(b) was irrelevant and that it would review the CGIA defense

 under section 24-4-106(7), C.R.S. 2019.3

¶9    However, the district court determined that it would review the

 OAC’s rejection of the SWA defense under section 24-4-106(8),

 which requires a showing of irreparable injury and agency action

 that is “clearly beyond the constitutional or statutory jurisdiction or

 authority of the agency.” The district court recognized that, unlike


 3 Under section 24-4-106(7), courts may overturn a final agency
 action if it is arbitrary or capricious, contrary to law, violative of
 constitutional rights, or an abuse of discretion. However, under
 section 24-10-106(8), a court may review a nonfinal administrative
 proceeding if an agency action (1) causes irreparable injury and (2)
 clearly exceeds statutory or constitutional jurisdiction or authority.
                                    4
  the CGIA, the SWA does not allow for immediate appeal. Further,

  the district court found that La Plata failed to demonstrate under

  section 24-4-106(8) that the OAC’s refusal to certify the SWA

  defense for interlocutory appeal caused La Plata irreparable injury.

  Thus, the district court upheld the OAC’s refusal to certify for

  appeal, under Rule 54(b), its decision regarding the SWA defense.

¶ 10   After additional briefing, the district court determined that the

  CGIA bars enforcement of the compliance order against La Plata

  because (1) the Department suffered an injury and (2) the

  compliance order is essentially a public nuisance claim that could

  lie in tort. However, it did not review the merits of the SWA defense

  because it concluded that the OAC’s rejection of the SWA defense

  did not cause La Plata irreparable harm under section 24-4-106(8).

  Finally, the district court awarded La Plata attorney fees as the

  prevailing party. See § 13-17-201, C.R.S. 2019.

                         II.   The CGIA Defense

¶ 11   The Department argues that the district court erred by holding

  that the CGIA bars the Department’s enforcement of the compliance

  order against La Plata. Specifically, the Department argues that the

  district court’s order contradicts the plain language and legislative

                                    5
  schemes of the SWA and CGIA, and that it forces inconsistent,

  unharmonious, and nonsensible effects. We agree.

               A.    Preservation and Standard of Review

¶ 12   The parties agree that the Department preserved most of its

  arguments for appeal. However, La Plata asserts that the

  Department failed to preserve its argument that CGIA immunity

  only applies in cases where a private person brings a claim against

  a public entity. We need not consider whether the Department

  preserved this argument because we reverse the district court’s

  ruling on different grounds.

¶ 13   “A C.R.C.P. 12(b)(1) motion to dismiss on grounds of immunity

  under the CGIA raises a jurisdictional issue[.]” Padilla v. Sch. Dist.

  No. 1, 25 P.3d 1176, 1180 (Colo. 2001). On appeal, we defer to the

  district court’s factual findings, but where the facts are undisputed,

  we review de novo the court’s jurisdictional ruling. Walton v. State,

  968 P.2d 636, 643 (Colo. 1998).

¶ 14   We review questions of statutory interpretation de novo. See

  Springer v. City & Cty. of Denver, 13 P.3d 794, 798-99 (Colo. 2000).

  Our primary purpose when construing a statute is to ascertain and

  give effect to the General Assembly’s intent. Id. at 799. We look

                                     6
  first to the statute’s language, giving words and phrases their plain

  and ordinary meanings. Id. If the statute is unambiguous, we need

  not conduct any further statutory analysis. Id. However, if the

  statute is ambiguous, we may enlist tools of statutory interpretation

  to ascertain the legislature’s intent. In re Marriage of Alvis, 2019

  COA 97, ¶ 9. “Those tools include legislative history, prior law, the

  consequences of a particular construction, and the goal of the

  statutory scheme.” Id. A statute is ambiguous if multiple

  reasonable interpretations are possible. Andrews v. Miller, 2019

  COA 185, ¶ 21 (citing Carrera v. People, 2019 CO 83, ¶ 18).

¶ 15   “Where possible, we interpret conflicting statutes in a manner

  that harmonizes the statutes and gives meaning to other potentially

  conflicting statutes.” City of Florence v. Pepper, 145 P.3d 654, 657

  (Colo. 2006). A “statutory scheme is read as a whole ‘to give

  “consistent, harmonious and sensible effect to all of its parts,”’ in

  accordance with the presumption that the legislature intended the

  entire statute to be effective.” Bryant v. Cmty. Choice Credit Union,

  160 P.3d 266, 274 (Colo. App. 2007) (quoting Colo. Water

  Conservation Bd. v. Upper Gunnison River Water Conservancy Dist.,

  109 P.3d 585, 593 (Colo. 2005)). “A statutory interpretation leading

                                     7
  to an illogical or absurd result will not be followed,” Frazier v.

  People, 90 P.3d 807, 811 (Colo. 2004), and courts “avoid

  constructions that are at odds with the legislative scheme,” Bryant,

  160 P.3d at 274.

                               B.    The CGIA

¶ 16    Under the CGIA, public entities are immune from liability for

  all claims for injury that lie in tort or could lie in tort “regardless of

  whether that may be the type of action or the form of relief chosen

  by the claimant,” unless the claim falls within an exception to that

  immunity. § 24-10-106(1), C.R.S. 2019. The form of the complaint

  is not determinative of the claim’s basis in tort. Robinson v. Colo.

  State Lottery Div., 179 P.3d 998, 1003 (Colo. 2008). Instead, a

  court must consider the nature of the injury and the relief sought.

  Id.

             When the injury arises either out of conduct
             that is tortious in nature or out of the breach
             of a duty recognized in tort law, and when the
             relief seeks to compensate the plaintiff for that
             injury, the claim likely lies in tort or could lie
             in tort for purposes of the CGIA.

  Id. “Although the nature of the relief requested is not dispositive on

  the question of whether a claim lies in tort, the relief requested


                                       8
  informs our understanding of the nature of the injury and the duty

  allegedly breached.” Id.; see City of Colo. Springs v. Conners, 993

  P.2d 1167, 1176 (Colo. 2000) (“[A] court must examine the nature of

  the injury and remedy asserted in each case to determine whether a

  particular claim is for compensatory relief for personal injuries and

  is therefore a claim which lies or could lie in tort for the purposes of

  the CGIA.”); see also Houchin v. Denver Health & Hosp. Auth., 2019

  COA 50M, ¶ 20 (holding that the CGIA applies to compensatory

  damages for discrimination under the Colorado Anti-Discrimination

  Act) (cert. granted Feb. 3, 2020).

¶ 17   The CGIA’s reach is not limited to claims that are capable of

  being recast as common law torts by the party bringing the claim.

  Colo. Dep’t of Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 690

  (Colo. 2008). Rather, immunity under the CGIA “broadly

  encompasses all claims against a public entity arising from the

  breach of a general duty of care, as distinguished from contractual

  relations or a distinctly non-tortious statutorily-imposed duty.” Id.

  at 691. “[U]ltimately, [the inquiry] turns on the source and nature

  of the government’s liability, or the nature of the duty from the



                                       9
  breach of which liability arises.” Id. at 690 (citing Robinson, 179

  P.3d at 1003-05).

                              C.    The SWA

¶ 18   The SWA regulates the management and disposal of solid

  waste throughout Colorado. § 30-20-100.5, C.R.S. 2019. It grants

  the Department the power to implement and administer the solid

  waste program, § 30-20-101.5(1), C.R.S. 2019, including the power

  to issue orders “requiring that [a] site and facility or person comply

  with any . . . requirement, rule, or certificate of designation and

  may request the attorney general to bring suit for injunctive relief or

  for penalties,” § 30-20-113(2)(a), C.R.S. 2019. Any site or facility

  that violates the SWA “shall be deemed a public nuisance” and

  “may be enjoined by the department, the board of county

  commissioners of the county wherein the violation occurred, or the

  governing body of the municipality wherein the violation occurred.”

  § 30-20-113(3). Under the SWA, a “person” is “an individual,

  partnership, private or municipal corporation, firm, board of a

  metropolitan district or sanitation district, or other association of

  persons.” § 30-20-101(3), C.R.S. 2019.

                              D.    Analysis

                                     10
¶ 19   The Department first argues that the language and legislative

  scheme of the SWA give the Department the authority to bring

  enforcement actions against counties. La Plata disagrees, arguing

  that counties do not fall within the SWA’s definition of “person” and

  thus cannot be subject to enforcement actions.4 To the extent the

  legislature’s failure to specifically reference counties in section


  4 Although the trial court did not rule on whether the Board is a
  “person” under the SWA, the issue was (1) presented at the
  administrative level and to the trial court; (2) ruled on at the
  administrative level; and (3) fully briefed by both parties in the
  administrative proceedings, in the trial court, and on appeal. See
  C.A.R. 1(d) (noting that the appellate court “may in its discretion
  notice any error appearing of record”); Robinson v. Colo. State
  Lottery Div., 179 P.3d 998, 1008 (Colo. 2008) (recognizing that an
  appellate court has discretion to notice any error appearing of
  record, even if not presented to the trial court); Roberts v. Am.
  Family Mut. Ins. Co., 144 P.3d 546, 549 (Colo. 2006) (recognizing
  that appellate courts have discretion to consider an unpreserved
  argument in a civil case); see also State v. Michielli, 937 P.2d 587,
  592 (Wash. 1997) (supreme court considered application of a rule
  authorizing dismissal of criminal charges in furtherance of justice,
  even though parties’ supreme court briefs did not address that
  issue, where the parties argued issue to trial court and court of
  appeals, but court of appeals majority failed to address issue).
  Under these circumstances, the parties certainly cannot claim
  surprise. Moreover, the parties agree that we do not need any facts
  that are not already in the record to interpret the challenged portion
  of the SWA. See, e.g., Anaya v. Indus. Comm’n, 182 Colo. 244, 247,
  512 P.2d 625, 627 (1973) (on a complete record, reviewing
  constitutional challenge for the first time on appeal); Robinson v.
  People, 173 Colo. 113, 116, 476 P.2d 262, 263 (1970) (reviewing, for
  the first time on appeal, a due process challenge).
                                     11
  30-20-101(3) creates an ambiguity, we consider the rest of the SWA,

  including its legislative history, and conclude that the General

  Assembly was aware that counties could be violators of the SWA

  and therefore subject to enforcement actions brought by the

  Department.

                          1.    Plain Language

¶ 20   It is true that section 30-20-101(3) does not expressly state

  that counties are “person[s],” but the definition includes “other

  association[s] of persons.” The parties disagree about whether a

  county is an “association of persons.” The Merriam-Webster

  dictionary defines an “association” as “an organization of persons

  having a common interest.” Merriam-Webster Dictionary,

  https://perma.cc/JJM8-FG53. Under this broad definition, a

  county could qualify as an “association of persons.” Black’s Law

  Dictionary defines an “association” as, among other things, “[a]

  gathering of people for a common purpose” and “[a]n

  unincorporated organization that is not a legal entity separate from

  the persons who compose it.” Black’s Law Dictionary 152-53 (11th

  ed. 2019). The latter definition in Black’s suggests that a county —



                                    12
  a legal entity separate from its residents — is not an “association of

  persons.”

¶ 21   But the SWA’s definition of “person” includes other

  governmental entities that are also separate legal entities, such as

  municipal corporations and boards of metropolitan districts and

  sanitation districts. These government entities are not so distinct

  from counties that counties are necessarily excluded from the scope

  of “association of persons.” See Mounkes v. Indus. Claim Appeals

  Office, 251 P.3d 485, 488 (Colo. App. 2010) (“[W]hen a general word

  or phrase follows a list of specific persons or things, the general

  word or phrase will be interpreted to include only persons or things

  of the same type as those listed.”).

¶ 22   La Plata, relying on Industrial Commission v. State

  Compensation Insurance Fund, 94 Colo. 194, 29 P.2d 372 (1932),

  also argues that, because the General Assembly used the word

  “county” in other sections of the SWA, it did not intend counties to

  be “person[s]” under section 30-20-101(3). Id. at 196, 29 P.2d at

  373-74 (holding that the state was not a “person” or “association of

  persons” under the Worker’s Compensation Act (WCA) because the

  legislature explicitly defined “employer” to include public employers,

                                    13
  such as the state, and private employers, defined as, among other

  things, “every person” and “association of persons”). While it is true

  the SWA mentions counties in other sections of the act, we are not

  convinced that Industrial Commission, which deals only with the

  WCA, requires us to hold that a county is not a “person” under the

  SWA. Moreover, section 13-20-113(2)(a) grants the Department

  enforcement authority over not just persons, but also over any “site

  and facility.” While the terms “site” and “facility” are not

  individually defined, an “appropriate site or facility” is one for which

  a certificate of designation — as provided in section 30-20-105,

  C.R.S. 2019 — has been obtained. La Plata County — or its

  predecessors — had to follow some version of the SWA in order to

  lawfully operate the landfill.

¶ 23   Even absent the broadly defined “person,” the parties do not

  dispute that the landfill nevertheless qualifies as a facility under the

  SWA. The SWA states that, whenever the Department finds a

  facility is in violation of the SWA, it may “issue an order requiring

  that the site and facility or person comply with any such

  requirement, rule, or certificate of designation.” § 30-20-113(2)(a)

  (emphasis added); see also § 30-20-110(1)(b), C.R.S. 2019 (requiring

                                     14
  that “sites and facilities shall comply with the health laws,

  standards, rules, and regulations . . .”). Thus, the plain language of

  the statute authorizes the Department to issue an order to those

  who own or operate a facility to comply with the SWA. See McCool

  v. Sears, 186 P.3d 147, 150 (Colo. App. 2008) (“We must give effect

  to each statutory word and construe the statute as a whole, giving

  its terms consistent, harmonious, and sensible effect, while

  avoiding an illogical or absurd result.”); see also Dep’t of Pub.

  Health and Env’t Reg. 1.2, 6 Code Colo. Regs. 1007-2 (defining

  “operator” and “owner”).

¶ 24   Accordingly, we conclude that the SWA’s use of the term

  “association of persons” is susceptible of multiple reasonable

  interpretations. See Andrews, ¶ 21. We next consult the SWA’s

  legislative history to determine if it sheds any light on the

  Department’s power to bring enforcement actions against counties.

                         2.    Legislative History

¶ 25   The General Assembly enacted the SWA in 1967, and the

  definition of “person” was largely the same as it is today.5 Ch. 358,


  5 The only difference between the original and current definitions is
  that the original did not include “board of a metropolitan district or
                                     15
  sec. 1, § 36-23-1, 1967 Colo. Sess. Laws 759. The General

  Assembly first amended the SWA in 1971, but this amendment

  made no changes to the definition of “person.” See Ch. 103, sec. 2,

  § 36-23-1, 1971 Colo. Sess. Laws 340.

¶ 26   In 1980, the legislature created an interim committee to

  consider revising the SWA in response to the Federal Resource

  Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901-

  6991 (2018).6 That committee published a report in 1980

  recommending, among other things, that the General Assembly

  “amplif[y]” the definition of “person” to include “governmental unit.”

  Colorado Legislative Council, Report to the Colorado General

  Assembly: Recommendations for 1981 Committee on: Hazardous



  sanitation district.” See Ch. 358, sec. 1, § 36-23-1, 1967 Colo.
  Sess. Laws 759.
  6 In 1976, Congress expressed concern over the growing solid waste

  disposal problem and recovery of usable materials in the United
  States. As a result, Congress enacted the RCRA, Pub. L. No.
  94-580, 90 Stat. 2795 (1976); 42 U.S.C. §§ 6901-6991 (2018). The
  primary objectives of RCRA are to assist states in solid waste
  management, address hazardous waste disposal issues, and
  promote resource recovery and conservation. Congress specifically
  wished “to promote the protection of health and the environment
  and to conserve valuable material and energy resources[.]” 42
  U.S.C. § 6902(a) (2018). Although solid waste management is left to
  state government, Congress envisioned that there would be federal
  financial and technical assistance through RCRA.
                                    16
  Waste, Research Pub. No. 254, at 25 (Dec. 1980). The report also

  recommended defining “governmental unit” to include counties. Id.

  at 24. However, the General Assembly did not then act on the

  committee’s recommendations.

¶ 27   In 1985, the General Assembly amended the SWA to allow for

  collection of civil penalties for the illegal dumping of solid waste.

  Ch. 254, sec. 1, § 30-20-113(2), 1985 Colo. Sess. Laws 1067. When

  considering this amendment, the General Assembly also

  contemplated allowing civil penalties for any violation of the SWA,

  not just illegal dumping. In the first version of the bill, the

  Department would have had the authority to issue compliance

  orders for all violations of the SWA and collect civil penalties. H.B.

  85-1077, 55th Gen. Assemb., 1st Reg. Sess. (as introduced 1985),

  https://perma.cc/5WBC-QFZA. Collected civil penalties would

  have been awarded to the counties or municipalities in which

  violations occurred unless “the county or municipality is

  responsible for the violation,” in which case the penalties would

  have gone to the state’s general fund. Id. The General Assembly

  ultimately removed this language from the bill due to rural counties’

  concerns about increasing the Department’s authority under the

                                     17
  SWA. Hearing on H.B. 85-1077 before the S. Comm. on Local Gov’t,

  55th Gen. Assemb., 1st Sess. (April 3, 1985).

¶ 28   However, in 1998, the General Assembly amended the SWA to

  allow the Department to issue compliance orders for any violation of

  the SWA without exempting cities, counties, or any other entities.

  Ch. 236, sec. 11, § 30-20-113, 1998 Colo. Sess. Laws 884-86.

  Further, in 2009, the General Assembly amended the SWA to

  increase maximum allowable civil penalties and to authorize the

  Department to enforce compliance orders through administrative

  law courts. Ch. 301, sec. 1, § 30-20-113, 2009 Colo. Sess. Laws

  1603-07. In four fiscal notes issued in relation to the 2009 bill, the

  following language appears in addressing the impact of the

  amendments on local governments:

            Municipalities and counties may have
            increased revenue from penalties assessed for
            violations of solid waste disposal. In addition,
            local government-owned waste facilities would
            be subject to increased penalties should they
            violate [the Department’s] compliance orders.

  E.g., Colo. Legislative Council Staff, Final Fiscal Note Concerning

  Increased Penalty Authority for the Department of Public Health




                                    18
  and Environment for Violations of Solid Waste Disposal Laws 2

  (June 10, 2009), https://perma.cc/RHH2-3AK9.7

¶ 29   Accordingly, we conclude that the General Assembly’s increase

  of the Department’s authority under the SWA over time — as also

  reflected in the language contained in the 2009 fiscal notes —

  demonstrates the General Assembly’s intent that the Department

  have the power to bring enforcement actions against waste-facilities

  owned or operated by cities or counties. While the General

  Assembly never amended the definition of “person” under the SWA

  to include counties expressly, its subsequent amendments and

  related notes show the General Assembly recognized that counties

  and other governmental units are subject to enforcement actions

  under the SWA.8 See id. A different interpretation of “person”


  7 We fully recognize that fiscal notes do not have the full weight of a
  legislative act, as they are not drafted by legislators, are not subject
  to vote, and are not part of the bill. However, to the extent they
  provide a glimpse into what was known at the time the amendment
  was being considered, they are helpful to use as we try to discern
  the General Assembly’s knowledge and intent. See, e.g., People in
  Interest of G.M., 844 P.2d 1341, 1344 (Colo. App. 1992) (considering
  fiscal notes in determining the General Assembly’s intent regarding
  amendments to the Children’s Code).
  8 Even the federal government is not immune from federally

  authorized state enforcement actions. See, e.g., United States v.
  Colorado, 990 F.2d 1565, 1579 (10th Cir. 1993).
                                     19
  would create an absurd result by allowing counties to avoid

  complying with the SWA and to evade oversight by the Department.

  See Frasier, 90 P.3d at 811.

                     3.    Immunity Under the CGIA

¶ 30   Having determined that the Department can bring

  enforcement actions against counties under the SWA, we now

  consider if the CGIA nonetheless bars the Department’s

  enforcement actions against counties. The Department argues that

  (1) the compliance order does not allege — and the Department has

  not suffered — an injury and (2) the compliance order does not

  bring a claim that lies or could lie in tort. Because the compliance

  order is a public enforcement action that does not and could not lie

  in tort, we agree with the Department.

           a.    Does the Compliance Order Allege an Injury?

¶ 31   “The CGIA applies when (1) the complaint alleges an injury

  and (2) the claim lies in tort or could lie in tort.” Open Door

  Ministries v. Lipschuetz, 2016 CO 37M, ¶ 15. Section 24-10-103(2),

  C.R.S. 2019, of the CGIA defines “injury” as “death, injury to a

  person, damage to or loss of property, of whatsoever kind, which, if

  inflicted by a private person, would lie in tort or could lie in tort

                                     20
  regardless of whether that may be the type of action or the form of

  relief chosen by a claimant.” “The nature of the injury alleged —

  not the relief requested — is the primary inquiry to determine

  whether the CGIA applies to the claim.” Open Door, ¶ 16.

¶ 32        The district court concluded that the mere existence of

  elevated levels of vinyl chloride in the groundwater constituted an

  injury under the CGIA. Specifically, the district court reasoned that

  a private party would have a claim for injury if the pollution had

  been detected in groundwater used for a domestic well. Thus, the

  district court concluded that the Department must “have some

  colorable claim for injury when groundwater belonging to the public

  is similarly contaminated.”

¶ 33        Even assuming that there is an injury, we conclude that the

  Department’s enforcement action via the compliance order does not

  bring a claim that lies or could lie in tort.

       b.      The Compliance Order Does Not Bring Claims that Lie or
                                 Could Lie in Tort

¶ 34        Even if the State or the Department suffered an injury here,

  the Department asserts that its compliance order does not bring a

  claim that lies or could lie in tort. The Department argues the


                                       21
  compliance order is a regulatory enforcement action based in the

  state’s police powers that (1) does not impose a duty or (2) imposes

  a nontortious statutory duty. Because enforcement actions under

  the SWA are public actions that do not seek to compensate the

  state for personal injuries or specific property damage, we hold that

  the compliance order does not bring claims that lie or could lie in

  tort.9

¶ 35       In City of Colorado Springs v. Connors, the Colorado Supreme

  Court held that the CGIA does not bar claims against public entities


  9 In addition to common law theories, federal laws establish liability
  for injury to natural resources and authorize Colorado’s Natural
  Resource Trustees (Trustees) to act on behalf of the public and
  recover damages for the restoration of those injured resources. See,
  e.g., Comprehensive Environmental Response, Compensation, and
  Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601(6), 9607(a),
  9607(f)(2)(B), and 9611(b) (2018); Oil Pollution Act of 1990 (OPA), 33
  U.S.C. §§ 2701-2719 (2018); Clean Water Act (CWA), 33 U.S.C.
  §§ 1251-1387 (2018). Colorado’s Attorney General, the Executive
  Director of the Colorado Department of Public Health and
  Environment, and the Executive Director of the Department of
  Natural Resources — or their delegates — serve as the
  Trustees. They act on behalf of the public when Colorado’s natural
  resources are injured or destroyed as a result of an oil spill or
  release of hazardous substances. See, e.g., Colo. Dep’t of Public
  Health & Env’t v. United States, 381 F. Supp. 3d 1300, 1305 (D.
  Colo. 2019); Complaint at ¶ 5, United States v. Suncor Energy USA
  Inc., 2013 WL 6042392 (D. Colo. Nov. 15, 2013) (No. 1:13-cv-3109).
  The Department’s enforcement activities here do not seek natural
  resource damages.
                                      22
  for restitution and back pay under the Colorado anti-discrimination

  statutes. 993 P.2d at 1173-74. Considering the nature of the

  plaintiff’s injury and the relief sought, the court reasoned that the

  plaintiff’s discrimination claims could not lie in tort because they

  were equitable in nature and did not seek to compensate the

  plaintiff for personal injuries. Id. at 1175. Later cases have limited

  the scope of this holding, stating that “the nature of the relief is not

  dispositive as to the question of whether a claim lies in tort.”

  Robinson, 179 P.3d at 1006; see also Brown Grp., 182 P.3d at 691

  (“[W]e have never suggested that claims for relief developed and

  historically administered by courts of chancery or equity, rather

  than courts of law, necessarily fall outside the coverage of the

  [CGIA].”).

¶ 36   In Colorado Department of Transportation v. Brown Group

  Retail, Inc., the Colorado Supreme Court stated that the CGIA

  “encompasses all claims against a public entity arising from the

  breach of a general duty of care, as distinguished from contractual

  relations or a distinctly non-tortious statutorily-imposed duty.” 182

  P.3d at 691. Nontortious statutory duties are distinct from general

  duties of care because the former seek to implement broad policy

                                     23
  while the latter primarily seek to compensate individuals for

  personal injuries. See id.; see also Robinson, 179 P.3d at 1006-07.

  The court in Brown Group later raised the possibility that the state’s

  hazardous waste statutes might create a nontortious statutory duty

  but declined to decide that issue. 182 P.3d at 691.

¶ 37   We conclude that the SWA imposes a nontortious statutory

  duty on solid waste facility operators to comply with the substantive

  provisions of the SWA. See § 30-20-113. Like the civil rights

  statute in Connors, which the legislature intended to address

  “constitutionally based concerns of equality rather than mere

  compensation for personal injury,” Robinson, 179 P.3d at 1006-07

  (discussing Connors), the SWA was not designed to compensate

  individual claimants. Rather, it seeks to redress solid waste

  management practices that impose “significant public health risks,

  environmental hazards, and long-term liability for the citizens of the

  state.” § 30-20-100.5(1)(b); see also Connors, 993 P.2d at 1173-74.

  And while the SWA authorizes the Department to seek injunctions

  and administrative or civil penalties for violations of the act, see

  § 30-20-113(b)(I), these remedies are equitable and punitive,

  respectively, and do not seek compensation for personal injuries or

                                     24
  specific property damage, see Robinson, 179 P.3d at 1006 (holding

  that the relief requested is “an aid in understanding the duty

  breached or the injury caused to determine if the claim lies or could

  lie in tort”); see also C.K. v. People, 2017 CO 111, ¶ 16 (holding that

  an award of attorney fees for failure to comply with discovery rules

  was a punitive sanction and not a tort under the CGIA).

¶ 38   La Plata argues that the SWA creates a duty in tort because,

  unlike the civil rights employment claim in Connors, enforcement

  actions under the SWA have their origin in common law public

  nuisance. Specifically, La Plata argues that the SWA codifies

  common law public nuisance claims that the Department, counties,

  and municipalities can bring against private solid waste facility

  operators.

¶ 39   We acknowledge that the SWA states that solid waste facilities

  that violate the act “shall be deemed a public nuisance,” § 30-20-

  113(3), and that some authorities consider public nuisance claims

  to be torts. See, e.g., Restatement (Second) of Torts § 821B,

  Westlaw (database updated Oct. 2019). But a statutorily authorized

  public enforcement action to abate hazardous environmental

  conditions that does not seek compensation for personal injuries or

                                    25
  specific property damage is not a tort. See Hoery v. United States,

  64 P.3d 214, 215 n.5 (Colo. 2003) (defining private nuisance as a

  tort and public nuisance as an “invasion of public rights”); see also

  Smillie v. Cont’l Oil Co., 127 F. Supp. 508, 510 (D. Colo. 1954)

  (applying Colorado law and explaining the difference between an

  invasion of personal rights and a nuisance); Freeman v. Grain

  Processing Corp., 848 N.W.2d 58, 84 (Iowa 2014) (recognizing

  “common law and nuisance actions have a different purpose than

  the regulatory regime established by the Clean Air Act”); Thomas W.

  Merrill, Is Public Nuisance A Tort?, 4 J. Tort L. 1, 6 (2011)

  (distinguishing “public actions” from “torts” and arguing that public

  nuisance claims are public actions, not torts). Torts generally seek

  to enforce private rights, but the compliance order in this case

  seeks to enforce the rights of the general public. See Merrill, 4 J.

  Tort L. at 8 (“Tort actions, as generally understood, are nearly

  always designed to protect private rights, not rights of the general

  public.”).

¶ 40   Our holding is consistent with the legislature’s intent

  expressed in Part II.B that the Department have the power to bring

  enforcement actions against counties. To hold otherwise would

                                     26
  prevent the Department from enforcing the provisions of the SWA

  on publicly maintained solid waste facilities, which make up most

  of the solid waste facilities in Colorado. See Pepper, 145 P.3d at

  657 (“[W]e interpret conflicting statutes in a manner that

  harmonizes [them].”).

¶ 41   Accordingly, we conclude that the district court erred by

  holding that the compliance order was a claim that lies or could lie

  in tort and that the CGIA stands as an obstacle to SWA

  enforcement. See Connors, 993 P.2d at 1177.

                            III.   Cross-Appeal

¶ 42   La Plata argues that the district court’s June 20, 2017, order

  erroneously held that La Plata’s CGIA defense qualified for

  automatic interlocutory appeal but its SWA defense did not.

  Specifically, La Plata argues that, because the district court held

  the CGIA defense qualified for interlocutory appeal, the SWA

  defense should have qualified as well. Further, La Plata objects to

  the district court’s application of section 24-4-106(8) in its July 9,

  2018, order, which held that La Plata failed to show it would suffer

  irreparable injury from the OAC’s rejection of the SWA defense.



                                     27
  Because La Plata’s cross-appeal is moot given our holding in the

  Department’s appeal, we dismiss it.

              A.    Applicable Law and Standard of Review

¶ 43   Generally, appellate courts only have jurisdiction over appeals

  from final judgments. § 13-4-102(1), C.R.S. 2019; Allison v. Engel,

  2017 COA 43, ¶ 23. However, Rule 54(b) allows a trial court to

  enter a final judgment on one or more claims in a multiple-claim

  case, thus permitting immediate appeal of those judgments under

  certain circumstances.10 Allison, ¶ 1. A trial court may certify a

  case for appeal pursuant to Rule 54(b) if the court (1) rules on an

  entire claim for relief; (2) ultimately disposes of the claim; and (3)

  expressly determines that there is no just reason to delay an appeal

  on the ruling. Galindo v. Valley View Ass’n, 2017 COA 78, ¶ 8.

¶ 44   We review de novo the legal sufficiency of a district court’s

  Rule 54(b) certification. Allison, ¶ 25. However, we review a district

  court’s determination regarding whether there is just reason to

  delay certification under C.R.C.P. 54(b) for an abuse of discretion.


  10Except for C.R.C.P. 16, C.R.S. 2019, and the filing deadlines for
  motions for summary judgment under C.R.C.P. 56(c), C.R.S. 2019,
  the Colorado Rules of Civil Procedure apply to matters before the
  OAC. Dep’t of Pers. and Admin. Rule 15, 1 Code Colo. Regs. 104-1.
                                     28
  Id. (citing Lytle v. Kite, 728 P.2d 305, 308 (Colo. 1986)). A district

  court abuses its discretion when its ruling is manifestly arbitrary,

  unreasonable, unfair, or based on an erroneous view of the law. Id.

¶ 45   Because this case involves administrative proceedings, we

  must also consider the APA, sections 24-4-101 to -108, C.R.S.

  2019. Under the APA, only final agency actions are subject to

  judicial review. § 24-4-106(2). Courts review final agency actions

  under section 24-4-106(7), which allows a court to overturn a final

  agency action if it was arbitrary or capricious, contrary to law,

  violative of constitutional rights, or an abuse of discretion.

  However, under limited circumstances, a court may intervene in

  ongoing administrative proceedings if an agency action (1) causes

  irreparable injury and (2) clearly exceeds statutory or constitutional

  jurisdiction or authority. § 24-4-106(8); Envirotest Sys., Corp. v.

  Colo. Dep’t of Revenue, 109 P.3d 142, 144 (Colo. 2005).

¶ 46   When a court rule and a statute conflict, we consider whether

  the affected matter is “procedural” or “substantive.” People v. G.S.,

  2018 CO 31, ¶ 32 (citing Borer v. Lewis, 91 P.3d 375, 380-81 (Colo.

  2004); People v. Wiedemer, 852 P.2d 424, 436 (Colo. 1993)). If an

  affected matter is procedural, the court rule controls; if the matter

                                     29
  is substantive, the statute controls. Id. “[R]ules adopted to permit

  the courts to function and function efficiently are procedural

  whereas matters of public policy are substantive and are therefore

  appropriate subjects for legislation.” Id. (quoting Wiedemer, 852

  P.2d at 436).

                              B.    Analysis

¶ 47   The district court’s June 20, 2017, order considered whether

  the OAC erred by denying the parties’ joint motion under Rule 54(b)

  for certification of the OAC’s order denying La Plata’s motion. The

  district court ruled that, under section 24-10-108, La Plata could

  immediately appeal the CGIA defense as a final judgment.11

  Specifically, the district court concluded that Rule 54(b) certification

  is unnecessary for orders regarding governmental immunity

  because all decisions regarding government immunity are final

  judgments. Further, because the OAC’s decision regarding the

  CGIA defense was final and thus immediately appealable, the

  district court did not consider — and need not have considered —




  11Section 24-10-108 states that any decision on a motion regarding
  governmental immunity “shall be a final judgment and shall be
  subject to interlocutory appeal.”
                                    30
  whether the OAC erred by denying Rule 54(b) certification for the

  CGIA defense under section 24-4-106(8).

¶ 48   The district court next considered if the OAC erred by denying

  Rule 54(b) certification to the SWA defense. However, the district’s

  court analysis of this issue was unnecessary because whether the

  OAC erred in applying Rule 54(b) to the SWA defense for appeal is

  irrelevant.

¶ 49   Section 24-4-106(8) governs appeals of nonfinal agency

  actions, and the OAC’s decision regarding the SWA defense was a

  nonfinal action. Section 24-4-106(8) reflects a legislative policy

  judgment that appeals of nonfinal agency actions meet a higher

  standard of review than ordinary civil interlocutory appeals under

  Rule 54(b). See State ex rel. Meyer v. Ranum High Sch., 895 P.2d

  1144, 1145 (Colo. App. 1995) (holding that the statutory injunction

  standard in section 1-45-113(2)(c), C.R.S. 1994, of the Campaign

  Reform Act, which mandated injunctions against violators of the

  act, controlled over C.R.C.P. 65, which requires a showing of

  irreparable harm). Thus, regardless of certification under Rule

  54(b), the APA allowed the district court to consider the SWA

  defense under section 24-4-106(8). See G.S., ¶ 32.

                                    31
¶ 50   In any event, La Plata’s objections regarding the SWA defense

  are now moot. To resolve the Department’s appeal, we had to

  consider, de novo, whether the SWA allows the Department to bring

  enforcement actions against counties. Having concluded that the

  SWA allows such actions — and that the CGIA does not stand as an

  obstacle — our holding renders La Plata’s attempt to appeal the

  SWA defense — that counties are not “person[s]” under the SWA —

  moot. See Bd. of Cty. Comm’rs v. Crystal Creek Homeowners Ass’n,

  14 P.3d 325, 329 (Colo. 2000) (“[O]ur holding in the appeal renders

  the cross-appeal . . . moot.”).

¶ 51   Accordingly, we dismiss La Plata’s appeal challenging the

  district court’s June 20, 2017, order and the operative portions of

  the July 9, 2018, order. See Crystal Creek, 14 P.3d at 329; Ranum

  High Sch., 895 P.2d at 1145.

                            IV.     Attorney Fees

¶ 52   In their respective appeals, the parties dispute whether La

  Plata is entitled to attorney fees under section 13-17-201. We

  previously dismissed this portion of the appeal without prejudice for

  lack of subject matter jurisdiction. Bd. of Cty. Comm’rs v. Colo.

  Dep’t of Pub. Health, (Colo. App. No. 18CA1551, Mar. 4, 2019)

                                      32
  (unpublished order). We address the issue of attorney fees in a

  separate opinion in Board of County Commissioners v. Colorado

  Department of Public Health, (Colo. App. No. 19CA410, Mar. 26,

  2020) (not published pursuant to C.A.R. 35(f)).

                            V.   Conclusion

¶ 53   The district court’s judgment is reversed and La Plata’s cross-

  appeal is dismissed in part.

       JUDGE BERGER and JUDGE LIPINSKY concur.




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