COLORADO COURT OF APPEALS                                       2017COA26


Court of Appeals No. 16CA1867
Logan County District Court No. 16CV30061
Honorable Charles M. Hobbs, Judge


Sterling Ethanol, LLC; and Yuma Ethanol, LLC,

Plaintiffs-Appellees,

v.

Colorado Air Quality Control Commission; and Colorado Department of Public
Health and Environment,

Defendants-Appellants.


                         ORDER REVERSED AND CASE
                         REMANDED WITH DIRECTIONS

                                  Division A
                           Opinion by JUDGE FOX
                         Ashby and Berger, JJ., concur

                         Announced February 23, 2017


Greenberg Traurig, LLP, Paul Seby, Hayley Easton, Denver, Colorado, for
Plaintiffs-Appellees

Cynthia H. Coffman, Attorney General, Robyn L. Wille, Laura Terlisner Mehew,
Assistant Attorney General, Denver, Colorado, for Defendants-Appellants
¶1    In this C.A.R. 4.2 interlocutory appeal, defendant, the Air

 Quality Control Commission (the Commission), seeks review of the

 district court’s order declining to dismiss the complaint of plaintiffs,

 Sterling Ethanol, LLC and Yuma Ethanol, LLC (collectively,

 Companies).1 The complaint sought review of a May 19, 2016,

 Commission order affirming two adverse compliance orders that the

 Colorado Air and Pollution Control Division (the Division) had

 issued. Neither the Colorado Supreme Court nor any division of

 this court has published a decision examining how the Colorado Air

 Pollution Prevention and Control Act (the APPCA), §§ 25-7-101 to -

 1309, C.R.S. 2016; the State Administrative Procedure Act (the

 APA), §§ 24-4-101 to -204, C.R.S. 2016; and the Commission’s

 procedural rules, when read together, affect the deadline to seek

 judicial review where the party seeking judicial review first filed a

 motion to reconsider with the Commission.2 Therefore, we conclude



 1 The Commission is an agency within the Colorado Department of
 Public Health and Environment. See § 25-7-104(1), C.R.S. 2016.
 2 Although divisions of this court have published opinions on facts

 similar to the facts in this case, those cases involved other statutes
 and different agencies. See, e.g., Bates v. Henneberry, 211 P.3d 68,
 72 (Colo. App. 2009) (considering 42 U.S.C. § 1396p (2012) and the
 Department of Health Care Policy and Financing); Jeffries v. Fisher,

                                    1
 that this case implicates an unresolved question of law warranting

 review pursuant to C.A.R. 4.2. C.A.R. 4.2(a) & (b); see also § 13-4-

 102.1, C.R.S. 2016. We grant the Commission’s petition for

 interlocutory review, reverse the district court’s order, and remand

 with directions.

                           I.    Background

¶2    Companies are ethanol manufacturing plants that are sources

 of air pollution in northeastern Colorado. They are required to

 operate in accordance with air permits issued by the Division.

¶3    After the Division issued two compliance orders addressing the

 Companies’ alleged violations of their air permits, Companies

 sought timely administrative review of the orders from the

 Commission, which operates pursuant to the APPCA. The

 Commission consolidated the cases and held an evidentiary

 hearing. On May 19, 2016, the Commission issued a “final order”

 affirming the Division’s orders “in all material respects.”




 66 P.3d 218, 219 (Colo. App. 2003) (considering section 42-2-
 126(10)(a), C.R.S. 2002, and the Department of Revenue).

                                    2
¶4    On May 31, 2016, Companies filed a motion to reconsider,3

 which the Commission denied on June 22, 2016, thirty-four days

 after the final order was issued. Companies filed a complaint in the

 district court on July 27, 2016, sixty-nine days after the

 Commission issued its final order and thirty-five days after the

 Commission denied the motion to reconsider.4 The Commission

 then filed a motion to dismiss for lack of subject matter jurisdiction,

 arguing that the complaint was untimely filed. The district court

 denied the motion to dismiss.

¶5    Thereafter, the Commission requested certification for

 immediate interlocutory review. The district court certified the


 3 The Code of Colorado Regulations, Dep’t of Pub. Health & Env’t
 Rule VI.F, 5 Code Colo. Regs. 1001-1, provides that a motion to
 reconsider a final decision must be made within ten days of the
 date of the decision.
 4 Initially, Companies sought judicial review of the Commission’s

 June 22 denial of the motion to reconsider. Later, they clarified
 their position as seeking judicial review of the May 19 final order, as
 decisions declining to reconsider are generally non-reviewable. See
 Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S.
 270, 283-84 (1987) (stating that under the Federal Administrative
 Procedure Act, a petition based on new evidence or changed
 circumstances is reviewable but otherwise a refusal to reconsider is
 not reviewable). As explained below, an order from the Commission
 that constitutes final agency action must be appealed within thirty-
 five days after the effective date of the order. See § 24-4-106(4),
 C.R.S. 2016. Here, that deadline was June 23 for the May 19 order.

                                    3
 following question for review: “Whether, when read together, the

 [APA], the APPCA and the Commission’s Procedural Rules compel

 the conclusion that the Complaint was untimely filed, depriving this

 Court of subject matter jurisdiction.” As explained here, the answer

 to this inquiry is “yes.”

     II.    The District Court Lacked Jurisdiction Over the Companies’
                              Belated Challenge

¶6         The district court erred in denying the motion to dismiss

 because the Companies’ complaint was untimely, depriving the

 court of subject matter jurisdiction. The party seeking judicial

 review must file a complaint within thirty-five days of the effective

 date of the Commission’s final order, even if that party first filed a

 motion to reconsider, and the Commission declined to reconsider its

 order. The plain language of the APPCA, the APA, and the

 Commission’s procedural rules requires such a conclusion.

                 A.   Standard of Review and Applicable Law

¶7         We apply a mixed standard of review to motions to dismiss for

 lack of subject matter jurisdiction. Hanson v. Colo. Dep’t of

 Revenue, 140 P.3d 256, 257-58 (Colo. App. 2006). We review

 factual findings for clear error, and such findings will be upheld



                                       4
 unless they have no support in the record. Id. However, we review

 legal conclusions de novo. Id. We also review a district court’s

 interpretation of a statute de novo. See Anderson v. Vail Corp., 251

 P.3d 1125, 1127-28 (Colo. App. 2010). In construing legislation, we

 look first to the plain language of the statute, reading it as a whole.

 Young v. Brighton Sch. Dist. 27J, 2014 CO 32, ¶ 11. Then, if the

 language is ambiguous, we “construe the statute in light of the

 General Assembly’s objective,” presuming “that the legislature

 intended a consistent, harmonious, and sensible effect.” Anderson,

 251 P.3d at 1127-28.

¶8    The APPCA states that any “final order or determination by . . .

 the [C]ommission shall be subject to judicial review in accordance

 with the provisions of” the APPCA and the APA. § 25-7-120(1),

 C.R.S. 2016. The APA, in turn, provides that “[f]inal agency action

 under this or any other law shall be subject to judicial review as

 provided in this section, whether or not an application for

 reconsideration has been filed, unless the filing of an application for

 reconsideration is required by the statutory provisions governing

 the specific agency.” § 24-4-106(2), C.R.S. 2016 (emphasis added).

 Additionally, “any person adversely affected or aggrieved by any


                                    5
 agency action may commence an action for judicial review in the

 district court within thirty-five days after such agency action

 becomes effective.” § 24-4-106(4).

¶9    The APPCA gives no further guidance as to when final orders

 become effective or when parties must seek judicial review.

 However, the procedural rules promulgated by the Commission

 pursuant to section 25-7-105, C.R.S. 2016, state that “[u]nless the

 Commission designates another date, the effective date of the final

 decision is the date of adoption of a dispositive resolution of the

 entire matter heard, including an order to that effect.” Dep’t of Pub.

 Health & Env’t Rule VI.E.3, 5 Code Colo. Regs. 1001-1. The rules

 also state that a “request to reconsider all or part of any final

 decision by the Commission may be made by either [party],” and

 that “[w]hen the Commission decides to reconsider any portion of a

 final decision, the effective date of the entire decision is suspended

 until reconsideration is complete.” Id. at VI.F.1 (emphasis added);

 see also A.S. v. People, 2013 CO 63, ¶ 21 (“[T]he legislature’s use of

 the term ‘may’ is generally indicative of a grant of discretion or

 choice among alternatives.”).




                                    6
¶ 10   The APA relatedly provides that the effective date for final

  agency orders is “on the date mailed or such later date as is stated

  in the decision.” § 24-4-105(16)(a), C.R.S. 2016; see also

  Associated Gov’ts of Nw. Colo. v. Colo. Pub. Utils. Comm’n, 2012 CO

  28, ¶ 8 (“Where a statute provides a right of review of an

  administrative decision, the statute is the exclusive means to secure

  review. A petitioner’s failure to comply strictly with the statutory

  procedure deprives the district court of jurisdiction.”) (citation

  omitted); Allen Homesite Grp. v. Colo. Water Quality Control Comm’n,

  19 P.3d 32, 34 (Colo. App. 2000) (noting that the failure to seek

  timely judicial review under the APA deprives the district court of

  jurisdiction). The APA further states that “[u]pon application by a

  party, and prior to the expiration of the time allowed for

  commencing an action for judicial review, the agency may change

  the effective date of a decision or initial decision.” § 24-4-105(16)(b)

  (emphasis added).

                               B.   Analysis

¶ 11   The July 27 complaint at issue was untimely. The

  Commission issued a “final order” stating that “[t]he appeals of [the

  Companies] are DENIED and the orders are AFFIRMED in all


                                     7
  material respects” and that this was “DONE and ORDERED this

  19th day of May 2016.” This final order resolved the entire matter

  and became effective on May 19, 2016, as specified in the order.

  See Dep’t of Pub. Health & Env’t Rule VI.E.3, 5 Code Colo. Regs.

  1001-1; see also § 24-4-105(16)(a).

¶ 12   Although Companies filed a motion to reconsider pursuant to

  Rule VI.F.1, the applicable statutes did not require Companies to do

  so before seeking judicial review. See Dep’t of Pub. Health & Env’t

  Rule VI.F.1, 5 Code Colo. Regs. 1001-1; see also A.S., ¶ 21. The

  plain language of Rule VI.F.1 leads us to conclude that the effective

  date is suspended only when the Commission decides to reconsider

  one of its final orders or determinations; if the Commission declines

  to do so, the effective date remains unchanged. See Dep’t of Pub.

  Health & Env’t Rule VI.F.1, 5 Code Colo. Regs. 1001-1; see also

  § 24-4-105(16)(b); Young, ¶ 11.

¶ 13   Because the Commission ultimately declined to reconsider its

  final order, filing the motion to reconsider did not suspend or

  change the order’s initial effective date of May 19, 2016, in spite of

  the Companies’ contentions to the contrary. See Dep’t of Pub.

  Health & Env’t Rule VI.F.1, 5 Code Colo. Regs. 1001-1; see also


                                     8
  § 24-4-106(2); Bates v. Henneberry, 211 P.3d 68, 73 (Colo. App.

  2009) (considering the effect of section 24-4-106(2) on proceedings

  before the Department of Health Care Policy and Financing and

  determining that a motion for reconsideration did not toll the

  deadline for seeking judicial review). Either party could have

  explicitly asked the Commission to change the effective date of the

  order to the date the Commission decided the motion to reconsider,

  but neither party did so.5 See § 24-4-105(16)(b); see also Bethesda

  Found. of Neb. v. Colo. Dep’t of Soc. Servs., 877 P.2d 860, 862-63

  (Colo. 1994) (determining that, where the decision-maker has the

  discretion to specify the effective date of its decision, the decision-

  maker has the power to modify the decision’s effective date).

¶ 14   Companies’ complaint, filed sixty-nine days after the effective

  date of the final order and thirty-four days after the June 23

  deadline to seek judicial review, was untimely. See § 24-4-106(4).

  As a result, the district court lacked subject matter jurisdiction.



  5 On June 24, 2016, one day after the deadline to seek judicial
  review of the Commission’s final order, Companies asked the
  Commission to stay the final order pending their request for judicial
  review. The request was denied because any request for judicial
  review was then untimely.

                                      9
  See Associated Gov’ts of Nw. Colo., ¶ 8; see also Allen Homesite

  Grp., 19 P.3d at 34.

¶ 15   To the extent that Companies suggest that the untimeliness of

  their complaint was caused by their reliance on any

  misrepresentation by the Commission, we reject this contention.

  We see no indication in the record of any such misrepresentation.

                             III.   Conclusion

¶ 16   The plain language of the statutes and rules at issue lead us

  to conclude that the complaint was untimely and, as a result, the

  district court lacked subject matter jurisdiction. Accordingly, the

  district court had no option but to dismiss. We therefore reverse

  the order denying the Commission’s motion to dismiss and remand

  for the district court to enter an order dismissing the action.

       JUDGE ASHBY and JUDGE BERGER concur.




                                     10
