COLORADO COURT OF APPEALS                                       2017COA37


Court of Appeals No. 16CA0564
City and County of Denver District Court No. 14CV32637
Honorable J. Eric Elliff, Judge


Xiuhtezcatl Martinez, Itzcuahtli Roske-Martinez, Sonora Brinkley, Aerielle
Deering, Trinity Carter, and Emma Bray, minors appearing by and through
their legal guardians Tamara Roske, Bindi Brinkley, Eleni Deering, Jasmine
Jones, Robin Ruston, and Diana Bray,

Plaintiffs-Appellants,

v.

Colorado Oil and Gas Conservation Commission,

Defendant-Appellee,

and

American Petroleum Institute and Colorado Petroleum Association,

Intervenors-Appellees.


                         JUDGMENT REVERSED AND CASE
                          REMANDED WITH DIRECTIONS

                                   Division V
                             Opinion by JUDGE FOX
                                Vogt*, J., concurs
                               Booras, J., dissents

                           Announced March 23, 2017


Colorado Environmental Law, LTD., Katherine Marlin, Boulder, Colorado;
Minddrive Legal Services, LLC, James Daniel Leftwich, Boulder, Colorado; Wild
Earth Advocates, Julia Olson, Eugene, Oregon; for Plaintiffs-Appellants
Cynthia H. Coffman, Attorney General, Jake Matter, Senior Assistant Attorney
General, Brittany K. Beckstead, Assistant Attorney General, Denver, Colorado,
for Defendant-Appellee

Ryley Carlock & Applewhite, Richard C. Kaufman, Julie A. Rosen, Matthew K.
Tieslau, Denver, Colorado, for Intervenors-Appellees

Western Environmental Law Center, Kyle Tisdel, Taos, New Mexico, for Amici
Curiae Colorado Chapter Global Catholic Climate Movement, 350 Colorado,
Eco-Justice Ministries, Denver Catholic Network and Global Climate
Movement, The Rocky Mountain Peace and Justice Center, Wall of Women
Colorado, Colorado People’s Alliance, Citizens for a Healthy Fort Collins,
Transition Fort Collins, The Fort Collins Sustainability Group, Citizens for a
Healthy Community, Be the Change, The Colorado Coalition for a Livable
Climate, Clean Energy Action, The Climate Culture Collaborative, Co-Op
Members Alliance, The Community for Sustainable Energy, Eco Elders, Vibrant
Planet, EnergyShouldBe.org, Frack Free Colorado, Lakewood Renewable
Energy Lakewood, North Metro Neighbors for Safe Energy, and Protect Our
Loveland

Cynthia H. Coffman, Attorney General, Claybourne F. Clarke, Senior Assistant
Attorney General, Laura Terlisner Mehew, Benjamin Saver, Assistant Attorneys
General, Denver, Colorado, for Amicus Curiae Colorado Department of Public
Health and Environment

Kevin Lynch, Timothy Estep, Denver, Colorado, for Amici Curiae Our Health,
Our Future, Our Longmont; Sierra Club; Earthworks; and Food & Water Watch


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    Through their legal guardians, Xiuhtezcatl Martinez, Itzcuahtli

 Roske-Martinez, Sonora Brinkley, Aerielle Deering, Trinity Carter,

 and Emma Bray (collectively Petitioners), who reside and recreate in

 Colorado, appeal the district court’s order and final judgment

 affirming a decision of the Colorado Oil and Gas Conservation

 Commission (the Commission) denying Petitioners’ rulemaking

 petition. The American Petroleum Institute and the Colorado

 Petroleum Association (collectively Intervenors) intervened in the

 district court and filed an appellate brief supporting the district

 court’s order. Additionally, on appeal, twenty-nine agencies and

 interest groups join as amici curiae, collectively filing three amici

 briefs.1



 1The Colorado Department of Public Health and Environment filed
 an amicus brief in support of the Commission. Colorado Chapter
 Global Catholic Climate Movement, 350 Colorado, Eco-Justice
 Ministries, Denver Catholic Network and Global Climate Movement,
 The Rocky Mountain Peace and Justice Center, Wall of Women
 Colorado, Colorado People’s Alliance, Citizens for a Healthy Fort
 Collins, Transition Fort Collins, The Fort Collins Sustainability
 Group, Citizens for a Healthy Community, Be the Change, The
 Colorado Coalition for a Livable Climate, Clean Energy Action, The
 Climate Culture Collaborative, Co-Op Members Alliance, The
 Community for Sustainable Energy, Eco Elders, Vibrant Planet,
 EnergyShouldBe.org, Frack Free Colorado, Lakewood Renewable
 Energy Lakewood, North Metro Neighbors for Safe Energy, and

                                    1
¶2    This appeal concerns the scope of authority and obligation

 delegated to the Commission by the General Assembly in the Oil

 and Gas Conservation Act (the Act), §§ 34-60-101 to -130, C.R.S.

 2016, to regulate oil and gas production in the interests of public

 health and safety. The district court affirmed the Commission’s

 order after concluding that the Commission lacked authority to

 consider a proposed rule that would require it to readjust the Act’s

 balance between the development of oil and gas resources and

 protection of public health, safety, and welfare. Because we agree

 with Petitioners that this conclusion was erroneous, we reverse the

 judgment of the district court and the decision of the Commission

 and remand to the district court to return the case to the

 Commission for further proceedings consistent with this opinion.

                           I.   Background

¶3    Hydraulic fracturing (fracking) is a modern process used to

 stimulate oil and gas production from an existing well by injecting

 water mixed with other chemicals and materials which cause, and



 Protect Our Loveland joined and filed an amici brief in support of
 Petitioners. Our Health, Our Future, Our Longmont; Sierra Club;
 Earthworks; and Food & Water Watch joined and filed a separate
 amici brief in support of Petitioners.

                                   2
 hold open, fractures in a well bore allowing oil and gas to flow to the

 well bore via the newly created fractures. City of Longmont v. Colo.

 Oil & Gas Ass’n, 2016 CO 29, ¶ 1.

¶4    The Commission is charged with generally regulating oil and

 gas resource production in Colorado. See § 34-60-105, C.R.S.

 2016; § 34-60-106, C.R.S. 2016.

¶5    On November 15, 2013, Petitioners filed a petition for

 rulemaking pursuant to the Commission’s Rule 529(b). See Dep’t of

 Nat. Res. Reg. 529, 2 Code Colo. Regs. 404-1. Petitioners proposed

 a rule requesting that the Commission

           not issue any permits for the drilling of a well
           for oil and gas unless the best available
           science demonstrates, and an independent,
           third party organization confirms, that drilling
           can occur in a manner that does not
           cumulatively, with other actions, impair
           Colorado’s atmosphere, water, wildlife, and
           land resources, does not adversely impact
           human health and does not contribute to
           climate change.

¶6    The Commission solicited and received written stakeholder

 comments and held a hearing, on April 28, 2014, where parties

 favoring and opposing the proposed rule testified.




                                    3
¶7    The Commission ultimately denied the petition, concluding

 that (1) the proposed rule mandated action that was beyond the

 limited statutory authority delegated by the General Assembly in

 the Act; (2) review by a third party — as Petitioners requested —

 contradicted the Commission’s nondelegable duty to promulgate

 rules under section 34-60-106(11)(a)(II) and is contrary to the Act;

 and (3) the public trust doctrine, which Petitioners relied on to

 support their request, has been expressly rejected in Colorado.2

¶8    The Commission also concluded that “the Commission and the

 Colorado Department of Public Health and the Environment

 (CDPHE) are currently addressing many of the Petitioners’ concerns

 through more gradual changes in regulation within their relative


 2 In 2016, in City of Longmont v. Colorado Oil and Gas Association,
 2016 CO 29, the Colorado Supreme Court rejected the adoption of
 the public trust doctrine in Colorado in its more general rejection of
 a local moratorium on fracking which the court concluded was
 preempted by state law. Id. at ¶ 62. Petitioners initially urged the
 Commission to adopt the public trust doctrine in their petition for
 rulemaking but do not reassert their public trust doctrine argument
 on appeal, nor do they contest the Commission’s conclusion as it
 narrowly relates to the public trust doctrine in Colorado. We
 therefore need not address the arguments of the Commission and
 Intervenors that Petitioners’ justifications for the proposed rule,
 under the public trust doctrine, were not valid. See Giuliani v.
 Jefferson Cty. Bd. of Cty. Comm’rs, 2012 COA 190, ¶ 52 (claim
 raised in complaint but not further litigated was abandoned).

                                   4
  jurisdictions.” In reaching its conclusions, the Commission largely

  relied on a memo from the Colorado Attorney General’s Office which

  advised that the Commission lacked jurisdiction to adopt the

  proposed rule as written, and that there is no statutory basis to

  withhold drilling permits pending the Petitioners’ proposed impact

  reviews.3

¶9     On July 3, 2014, Petitioners appealed the Commission’s

  decision to the district court pursuant to the State Administrative

  Procedure Act, § 24-4-106, C.R.S. 2016. The parties filed briefs and

  Petitioners requested oral argument.

¶ 10   The district court, ruling on the briefs, applied the two-part

  test from Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

  Inc., 467 U.S. 837 (1984), and concluded that the Act’s language is

  clear and unambiguous and requires a balance between the

  development of oil and gas resources and protecting public health,

  safety, and welfare. The district court further concluded that the

  Commission did not act arbitrarily or capriciously in relying on the

  advice of the Attorney General’s Office, and that it rationally decided


  3 By relying on the memo, the Commission waived any attorney-
  client privilege in the memo.

                                    5
  to deny the petition after considering input from stakeholders on

  both sides of the fracking issue. Thus, the district court affirmed

  the Commission.

              II.   The Commission’s Duty Under the Act

¶ 11   Petitioners contend that the district court and the Commission

  erred in interpreting the Act. We agree.

               A.    Preservation and Standard of Review

¶ 12   The parties agree that Petitioners preserved their argument for

  appeal.

¶ 13   We may overturn an administrative agency’s determination

  only if we conclude that the agency (1) acted arbitrarily or

  capriciously; (2) made a determination that is not supported by the

  record; (3) erroneously interpreted the law; or (4) exceeded its

  constitutional or statutory authority. Sapp v. El Paso Cty. Dep’t of

  Human Servs., 181 P.3d 1179, 1182 (Colo. App. 2008). The district

  court exercises no factfinding authority in its review of an agency

  decision and is in the same position as this court, so we engage in

  the same type of record review as did the district court. Id.

¶ 14   We review statutory construction de novo. Archuletta v. Indus.

  Claim Appeals Office, 2016 COA 66, ¶ 11. While we defer to an


                                     6
agency’s policy determinations in rulemaking proceedings, that

deference does not extend to “questions of law such as the extent to

which rules and regulations are supported by statutory authority.”

Simpson v. Cotton Creek Circles, LLC, 181 P.3d 252, 261 (Colo.

2008). Under Chevron, the first step in reviewing an agency’s

interpretation of a statute involves using traditional tools of

statutory construction to determine whether the language of the

statute is clear and whether the legislature has spoken directly to

the question at issue. 467 U.S. at 842-43. We begin interpreting a

statute by looking to the plain and ordinary meaning of the

language. Robinson v. Legro, 2014 CO 40, ¶ 14. We “read and

consider the statutory scheme as a whole to give consistent,

harmonious and sensible effect to all its parts.” Id. (citation

omitted). We presume the legislature intended the entire statute to

be effective and avoid constructions that would render any part

meaningless. Id. “When we interpret a comprehensive legislative

scheme, we must give meaning to all portions thereof and construe

the statutory provisions to further the legislative intent.” Droste v.

Bd. of Cty. Comm’rs, 159 P.3d 601, 605 (Colo. 2007). If the




                                   7
  statutory intent is plain and unambiguous, our inquiry ends there.

  See Chevron, 467 U.S. at 842-43.

                                B.       Law

¶ 15   The Commission is a creature of state statute and has only the

  powers conferred on it by the Act. Chase v. Colo. Oil & Gas

  Conservation Comm’n, 2012 COA 94, ¶ 26. The Act grants the

  Commission broad jurisdiction and empowers it to “make and

  enforce rules, regulations, and orders” and “to do whatever may

  reasonably be necessary” to carry out the provisions of the Act. Id.

  (quoting § 34-60-105(1)). Pursuant to the Act, the Commission is

  authorized to regulate “the drilling, producing, and plugging of wells

  and all other operations for the production of oil and gas.”

  § 34-60-106(2)(a).

¶ 16   Significantly here, the General Assembly declares that it is in

  the public interest to

             [f]oster the responsible, balanced development,
             production, and utilization of the natural
             resources of oil and gas in the state of
             Colorado in a manner consistent with
             protection of public health, safety, and welfare,
             including protection of the environment and
             wildlife resources.

  § 34-60-102(1)(a)(I), C.R.S. 2016 (emphasis added).


                                     8
                              C.    Analysis

¶ 17   The Commission interpreted section 34-60-102(1)(a)(I) as

  requiring a balance between oil and gas production and public

  health, safety, and welfare. The Commission concluded that

  Petitioners’ suggested interpretation would “have required the

  Commission to readjust the balance crafted by the General

  Assembly under the Act, and is therefore beyond the Commission’s

  limited grant of statutory authority.”

¶ 18   Petitioners argue that the Commission’s interpretation renders

  the phrase “in a manner consistent with protection of public health,

  safety, and welfare” in section 34-60-102(1)(a)(I) superfluous.

  Petitioners further contend that the balance sought by the General

  Assembly in section 34-60-102(1)(a)(I) applies to the development,

  production, and utilization of oil and gas resources, which must be

  authorized in a balanced manner — meaning without causing waste

  — and subject to adequate consideration of public health, safety,

  and environmental and wildlife impacts. Petitioners maintain that

  the Commission incorrectly interpreted the plain language of

  section 34-60-102(1)(a)(I) and, in doing so, erred in denying their

  petition for rulemaking.


                                     9
¶ 19   We agree with Petitioners, the Commission, and the district

  court that the language of section 34-60-102(1)(a)(I) is clear and

  unambiguous, but we conclude that it unambiguously supports a

  conclusion different from that reached by the Commission and the

  district court. The Act clearly states that fostering “responsible,

  balanced development, production, and utilization of the natural

  resources” is in the public interest. § 34-60-102(1)(a)(I). Then, the

  Act qualifies itself by adding the key phrase “in a manner consistent

  with” the protection of public health and other related concerns.

  Id.; see also City of Jefferson City v. Cingular Wireless, LLC, 531

  F.3d 595, 611 (8th Cir. 2008) (the fact that parties disagree about

  what a statute means does not itself create ambiguity).

¶ 20   Contrary to the Commission’s conclusion, the use, in section

  34-60-102(1)(a)(I), of the term “balanced” relates to and modifies

  “development, production, and utilization.” As used in the plain

  text, “balanced” is an adjective which modifies the nouns

  “development, production, and utilization.” See § 34-60-102(1)(a)(I);

  see also Double D Manor, Inc. v. Evergreen Meadows Homeowners’

  Ass’n, 773 P.2d 1046, 1048 (Colo. 1989) (an adjective modifies a

  noun that follows it). The remaining provisions in section


                                    10
  34-60-102(1)(a)(I) are not affected by the term “balanced.”4 Instead,

  the statutory language provides that fostering balanced

  development is in the public interest when that balanced

  development is completed “in a manner consistent with” public

  health, safety, and environmental and wildlife impacts.

  § 34-60-102(1)(a)(I); see also Gerrity Oil & Gas Corp. v. Magness,

  946 P.2d 913, 925 (Colo. 1997) (recognizing that the Act’s purposes

  are “to encourage the production of oil and gas in a manner that

  protects public health and safety and prevents waste”).

¶ 21   Critical here is the proper interpretation of the phrase “in a

  manner consistent with.” We agree with Petitioners that “in a

  manner consistent with” does not indicate a balancing test but

  rather a condition that must be fulfilled. This interpretation is

  supported by similar interpretations from our supreme court as well




  4 This is demonstrated by the historical importance of the General
  Assembly qualifying “development, production, and utilization” with
  the adjective “balanced.” As further explained below, in our
  discussion of the Act’s legislative evolution, the General Assembly
  sought balanced development, production, and utilization to curb
  unnecessary waste and to preserve the correlative rights of other
  potential users of natural resources such as oil and gas.

                                    11
  as the commonly understood use of the phrase as evidenced by its

  general use in statutes and judicial opinions.

¶ 22   The Colorado Supreme Court, when asked to interpret certain

  provisions of the Local Government Land Use Control Enabling Act

  of 1974, § 29-20-102, C.R.S. 2016, explicitly and clearly interpreted

  the phrase “in a manner consistent with” as meaning “subject to.”

  See Droste, 159 P.3d at 606. There, the court interpreted the

  statutory phrase “in a manner consistent with constitutional rights”

  as meaning “subject to the constitutional rights of the property

  owner[.]” Id. This interpretation supports our conclusion that the

  language of the Act does not create a balancing test weighing safety

  and public health interests against development of oil and gas

  resources, but rather, the Act indicates that fostering balanced,

  nonwasteful development is in the public interest when that

  development is completed subject to the protection of public health,

  safety, and welfare, including protection of the environment and

  wildlife resources. See § 34-60-102(1)(a)(I).

¶ 23        Interpreting the phrase “in a manner consistent with” as

  a balancing test disregards the plain meaning of the phrase. The

  phrase denotes more than a mere balancing. Cases in Colorado are


                                    12
  replete with instances where the phrase is used to denote “subject

  to” rather than “balanced with.” See, e.g., People v. Baez-Lopez,

  2014 CO 26, ¶ 28 (“[W]e conclude that the recordings were

  physically sealed and preserved in a manner consistent with section

  16-15-102(8)(a).”); In re Great Outdoors Colo. Tr. Fund, 913 P.2d

  533, 539 (Colo. 1996) (“In enacting legislation, the General

  Assembly is authorized to resolve ambiguities in constitutional

  amendments in a manner consistent with the terms and underlying

  purposes of the constitutional provisions.”); Stan Clauson Assocs.,

  Inc. v. Coleman Bros. Constr., LLC, 2013 COA 7, ¶ 10 (“Professional

  standards of care reflect the policy that members of professions

  must do their work not just reasonably well, but rather ‘in a

  manner consistent with members of the profession in good

  standing.’” (quoting Command Commc’ns, Inc. v. Fritz Cos., 36 P.3d

  182, 189 (Colo. App. 2001))).

¶ 24   The phrase is often used in the dispositional language of

  opinions from this court and other appellate courts. Divisions of

  this court, when remanding a case to a district court for further

  proceedings, often use language similar to “the case is remanded for

  proceedings in a manner consistent with this opinion.” See


                                   13
  Vashone-Caruso v. Suthers, 29 P.3d 339, 345 (Colo. App. 2001); 1st

  Am. Sav. Bank v. Boulder Cty. Bd. of Comm’rs, 888 P.2d 360, 363

  (Colo. App. 1994). The intention of the phrase “in a manner

  consistent with” in these settings is not to instruct a court on

  remand to take action in a manner “balanced with” the opinion

  from the appellate court, but instead instructs that the court on

  remand must take action subject to the appellate opinion.

¶ 25   As used in the Act, the phrase qualifies the preceding

  provision, promoting the development of oil and gas. See

  § 34-60-102(1)(a)(I). We therefore conclude that the Commission

  erred in interpreting section 34-60-102(1)(a)(I) as requiring a

  balance between development and public health, safety, and

  welfare. The plain meaning of the statutory language indicates that

  fostering balanced, nonwasteful development is in the public

  interest when that development is completed subject to the

  protection of public health, safety, and welfare. See




                                    14
  § 34-60-102(1)(a)(I); see also Gerrity Oil & Gas Corp., 946 P.2d at

  925.5

¶ 26   Our interpretation also gives meaning to all of the words in the

  statute, whereas the Commission’s interpretation effectively

  disregarded the phrase “in a manner consistent with.” See Legro,

  ¶ 14 (we avoid statutory constructions that would render any part

  of a statute meaningless).

¶ 27   We disagree with the Commission and its amici that other

  sections of the Act support a contrary interpretation. The

  Commission argues that the language of section 34-60-106(2)(d) —

  stating that the Commission has the authority to regulate “[o]il and



  5 Moreover, the Colorado Revised Statutes contain many examples
  of instances where the General Assembly has articulated clear
  intent that a balancing test be employed, and such language is not
  contained in the Act. See, e.g., § 24-91-101(2), C.R.S. 2016
  (“[T]here is a substantial statewide interest in ensuring that the
  policy underlying the efficient expenditure of public moneys is
  balanced with the policy of fostering a healthy and viable
  construction industry.”); § 6-1-902(1)(c), C.R.S. 2016 (“Individuals’
  privacy rights and commercial freedom of speech should be
  balanced in a way that accommodates both the privacy of
  individuals and legitimate telemarketing practices[.]”). Had the
  General Assembly intended for a balancing test to be applied in
  section 34-60-102(1)(a)(I), C.R.S. 2016, it would have explicitly said
  so. See Showpiece Homes Corp. v. Assurance Co. of Am., 38 P.3d
  47, 57 (Colo. 2001).

                                    15
gas operations so as to prevent and mitigate significant adverse

environmental impacts . . . to the extent necessary to protect public

health, safety, and welfare . . . taking into consideration

cost-effectiveness and technical feasibility[]” — demonstrates that

the Act calls for the balance that the Commission read into the

language of section 34-60-102. However, section 34-60-106(2)(d)

supports the conclusion that the Commission has authority to

promulgate rules regulating oil and gas development in the interest

of protecting public health, safety, and welfare. See § 34-60-

106(2)(d). The General Assembly’s use of the phrase “to the extent

necessary to protect public health, safety, and welfare,” when

describing the purpose of regulation, evidences a similar intent to

elevate the importance of public health, safety, and welfare above a

mere balancing — the same as what the General Assembly wrote

into section 34-60-102.6 Section 34-60-106(2)(d) in no way

conflicts with our interpretation of section 34-60-102.



6 The statutory language “to the extent necessary” evidences the
General Assembly’s intent to create a mandatory condition rather
than a factor in a general balancing inquiry. See, e.g., Calderon v.
Am. Family Mut. Ins. Co., 2016 CO 72, ¶ 53 (insurance statutes
intended that benefit be provided “to the extent necessary” for full

                                  16
¶ 28   Our conclusion is further supported by the evolution of the

  General Assembly’s regulation of the oil and gas industry in

  Colorado and its numerous alterations to the language of the Act.

  Originally, the Act contained no qualifying language regarding

  responsible, balanced development, or the protection of public

  health and the environment. See Ch. 208, sec. 10, § 100-6-22,

  1955 Colo. Sess. Laws 657. For decades, the Act read: “It is hereby

  declared to be in the public interest to foster, encourage and

  promote the development, production and utilization of the natural

  resources of oil and gas in the state of Colorado[.]” Id.

¶ 29   In 1994 the General Assembly added the language “in a

  manner consistent with protection of public health, safety, and

  welfare[.]” Ch. 317, sec. 2, § 34-60-102, 1994 Colo. Sess. Laws

  1978. Then, in 2007, the General Assembly completed the Act as it

  reads today by amending and adding language so that the statute

  read: “It is declared to be in the public interest to foster . . .




  compensation) (citing Kral v. Am. Hardware Mut. Ins. Co., 784 P.2d
  759, 765 (Colo. 1989)); People in Interest of G.S., 820 P.2d 1178,
  1180 (Colo. App. 1991) (a guardian ad litem has the affirmative
  duty to participate in proceedings “to the extent necessary” to
  represent the child).

                                      17
  responsible, balanced [resource] development[.]” Ch. 320, sec. 1,

  § 34-60-102, 2007 Colo. Sess. Laws 1357.

¶ 30   These amendments reflect the General Assembly’s general

  movement away from unfettered oil and gas production and

  incorporation of public health, safety, and welfare as a check on

  that development. This understanding supports our conclusion

  that the Act was not intended to require that a balancing test be

  applied when agencies charged with carrying out and enforcing the

  intent behind the Act, like the Commission, make decisions on

  regulation, including a decision denying a petition for a proposed

  rule. Rather, the clear language of the Act — supported by the Act’s

  legislative evolution and the Commission’s own enforcement criteria

  — mandates that the development of oil and gas in Colorado be

  regulated subject to the protection of public health, safety, and

  welfare, including protection of the environment and wildlife

  resources. See Oil & Gas Conservation Comm’n, Colorado Oil and

  Gas Conservation Commission Enforcement Guidance and Penalty

  Policy 1 (Jan. 2015), https://perma.cc/39RU-99MF (“In Colorado

  . . . the development of . . . natural resources must be consistent

  with protection of public health, safety, and welfare, including the


                                    18
  environment and wildlife resources, at all times[.]”); see also § 34-

  60-106(2)(d).

¶ 31   Because we conclude that the district court and the

  Commission erroneously interpreted the Act, we reverse. Nixon v.

  City & Cty. of Denver, 2014 COA 172, ¶ 12 (an agency abuses its

  discretion when it erroneously interprets the law). The record

  indicates that the Commission based its denial of the petition for

  rulemaking primarily on its determination that it lacked authority

  to implement Petitioners’ proposed rule. The administrative record

  does not contain sufficient findings of fact for us to affirm the

  Commission’s decision on alternative grounds — such as the

  Commission’s statement that “there are other Commission priorities

  that must take precedence over the proposed rulemaking at this

  time,” or the Commission’s reference to the proposed rule’s

  impermissible delegation of Commission duties to a third party (an

  issue not addressed by the district court or briefed on appeal to this

  court). See Chase, ¶ 59 (remand proper when record contains

  insufficient basis for agency conclusions).

¶ 32   Our decision does not address the merits of whether the

  Commission should adopt Petitioners’ proposed rule. Our review is


                                     19
  limited to the Commission’s rejection of Petitioners’ proposed rule

  based on the Commission’s determination that such action would

  exceed its statutory authority under the Act — which is legally

  incorrect. See, e.g., United States v. Allegheny-Ludlum Steel Corp.,

  406 U.S. 742, 749 (1972) (Courts do not “inquire into the wisdom of

  the regulations” that a commission promulgates but, instead,

  inquire into “the soundness of the reasoning by which [a]

  [c]ommission reaches its conclusions.”).

¶ 33   The Commission argues that under Massachusetts v.

  Environmental Protection Agency, 549 U.S. 497, 527-28 (2007),

  judicial review of denials of rulemaking petitions is limited and

  deferential. True, but a denial of a rulemaking petition remains

  properly the subject of judicial review. See id.; Am. Horse Prot.

  Ass’n, Inc. v. Lyng, 812 F.2d 1, 4 (D.C. Cir. 1987) (agency refusals

  to institute rulemaking proceedings are subject to judicial review).

  Unlike in Massachusetts v. Environmental Protection Agency, where

  the Supreme Court concluded, on the merits, that the

  Environmental Protection Agency’s refusal to promulgate a

  proposed rule was an abuse of discretion, 549 U.S. at 528, 534, our

  decision does not reach the merits of whether the Commission


                                    20
  abused its discretion in refusing to promulgate Petitioners’

  proposed rule. Instead, our decision only addresses the

  Commission’s interpretation of its authority under the Act as a part

  of its denial of the petition for rulemaking, which we conclude is

  incorrect. See Allegheny-Ludlum, 406 U.S. at 749.

                     III.   Constitutional Contentions

¶ 34   Petitioners contend that the Commission’s interpretation of

  the Act is an unconstitutional infringement of Petitioners’ natural

  rights to enjoy their lives and liberties, protect their property, and

  obtain their safety and happiness. Colo. Const. art. II, § 3.

¶ 35   Because we conclude that the Commission erred in its

  interpretation of the Act and reverse, we need not address

  Petitioners’ constitutional arguments. See City of Florence v.

  Pepper, 145 P.3d 654, 660 (Colo. 2006) (“Where possible, we avoid a

  constitutional analysis in favor of a statutory resolution.”); Club

  Matrix, LLC v. Nassi, 284 P.3d 93, 99 (Colo. App. 2011) (we need not

  address additional arguments rendered moot by our ultimate

  disposition).




                                     21
                            IV.   Conclusion

¶ 36   The Commission’s order denying Petitioners’ petition for

  rulemaking and the district court’s order on appeal are reversed,

  and the case is remanded to the district court to return it to the

  Commission for further proceedings consistent with this opinion.

       JUDGE VOGT concurs.

       JUDGE BOORAS dissents.




                                    22
       JUDGE BOORAS, dissenting.

¶ 37   I disagree with the majority’s interpretation of the phrase “in a

  manner consistent with” and its reliance on a legislative declaration

  to find a mandatory duty. Therefore, I respectfully dissent from the

  majority’s conclusion that the statutory scheme of the Oil and Gas

  Conservation Act (the Act), §§ 34-60-101 to -130, C.R.S. 2016,

  requires protection of public health, safety, and welfare as a

  determinative factor, instead of requiring balancing between those

  considerations and oil and gas production.

¶ 38   The Colorado Oil and Gas Commission (the Commission)

  discerns that its role under the Act is to balance oil and gas

  development with other public interests. “Courts may only

  disregard an agency’s interpretation of a statute it is charged with

  enforcing when that interpretation is inconsistent with the clear

  language of the statute or the agency has exceeded the scope of the

  statute.” Huber v. Kenna, 205 P.3d 1158, 1164 (Colo. 2009) (citing

  Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837,

  844 (1984)).

¶ 39   The majority concludes that the Commission’s interpretation

  of the Act is inconsistent with the clear language of the Act, in


                                     23
  particular section 34-60-102(1)(a)(I), C.R.S. 2016, which provides

  that it is in the public interest to:

             Foster the responsible, balanced development,
             production, and utilization of the natural
             resources of oil and gas in the state of
             Colorado in a manner consistent with
             protection of public health, safety, and welfare,
             including protection of the environment and
             wildlife resources.

¶ 40   In order to reach this conclusion, the majority examines the

  use of the phrase “in a manner consistent with” in a number of

  unrelated contexts, largely relying on remand language from

  opinions, and surmises that it does not indicate “balancing,” but

  rather “a condition that must be fulfilled” or “subject to.” But

  Webster’s Third New International Dictionary defines “consistent

  with” as “to be consistent, harmonious, or in accordance,” and

  “consistently” as “compatibly,” “congruously,” “in harmony with,”

  and “in a persistent or even manner.”1 Webster’s Third New

  International Dictionary Unabridged 484 (2002). Contrary to the

  majority’s supposition, these definitions signify a balancing process.


  1 The use of a dictionary is appropriate to interpret undefined
  statutory terms. Bontrager v. La Plata Elec. Ass’n Inc., 68 P.3d 555,
  559 (Colo. App. 2003) (citing 2A Norman J. Singer, Sutherland on
  Statutory Construction § 47.27 (6th ed. 2000)).

                                      24
¶ 41   Significantly, the language on which the majority primarily

  relies to support its view that protection of public health, safety,

  and welfare is a mandatory precondition is located in the legislative

  declaration to the Act. Even when codified, a legislative declaration

  is primarily “an explicit or formal statement or announcement

  about the legislation” that “indicates the problem the General

  Assembly is trying to address.” Lester v. Career Bldg. Acad., 2014

  COA 88, ¶ 27 (citation omitted). Generally, a legislative declaration

  is used only to interpret a statute that is ambiguous; it cannot

  override the language of a statute. See § 2-4-203(1)(g), C.R.S. 2016

  (identifying the legislative declaration or purpose as an aid in

  construing ambiguous statutes); People in Interest of T.B., 2016

  COA 151M, ¶¶ 41, 42, as modified on denial of reh’g (Dec. 29, 2016)

  (noting that courts generally do not consider a legislative

  declaration where a statute is unambiguous and that a legislative

  declaration cannot override a statute’s language); see also People v.

  Ennea, 665 P.2d 1026, 1029 (Colo. 1983) (rejecting the defendant’s

  attempt to add an element to the sexual exploitation of a child

  statute based on language in the legislative declaration).




                                     25
¶ 42   The actual authority of the Commission to regulate oil and gas

  is set out in section 34-60-106(2)(d), C.R.S. 2016:

             The commission has the authority to regulate
             . . . [o]il and gas operations so as to prevent
             and mitigate significant adverse environmental
             impacts on any air, water, soil, or biological
             resource resulting from oil and gas operations
             to the extent necessary to protect public
             health, safety, and welfare, including
             protection of the environment and wildlife
             resources, taking into consideration cost-
             effectiveness and technical feasibility.

  (Emphasis added.)

¶ 43   The majority concludes that this section also supports its

  view, construing the use of “to the extent necessary” as evidencing

  “a similar intent to elevate the importance of public health, safety,

  and welfare above a mere balancing.” However, the statute, read as

  a whole, directs the Commission to “prevent and mitigate significant

  adverse environmental impacts,” and also to take into consideration

  “cost-effectiveness and technical feasibility.” There would be no

  reason to consider cost-effectiveness and technical feasibility if

  protection of the public health, safety, and welfare was, by itself, a

  determinative consideration.




                                    26
¶ 44   Because the Commission is required by statute to regulate oil

  and gas operations by balancing the relevant considerations, the

  Commission properly denied Petitioners’ petition for rulemaking,

  which would have required the Commission to view public health

  and environmental considerations as being determinative. The

  majority characterizes this denial as a “refusal to engage in the

  rulemaking process.” The majority may be focusing on the use of

  the word “jurisdiction” in the Commission’s order.2 However, a

  careful reading of the order reveals that the Commission deemed

  the proposed rulemaking to be outside its statutory authority, not

  outside of its jurisdiction.

¶ 45   Even Petitioners conceded in the district court that the

  Commission “did not claim that it doesn’t have the jurisdiction to

  promulgate a rule,” but rather that it did not have the authority

  under the statute to promulgate the rule Petitioners were requesting


  2 The Commission’s order primarily used the word “authority.”
  However, the order used the word “jurisdiction” referring to a memo
  that had been prepared by the Colorado Attorney General’s office
  regarding the Colorado Department of Public Health and
  Environment’s expertise in air quality. See People v. Sherrod, 204
  P.3d 466, 470 (Colo. 2009) (noting that there is sometimes
  “analytical confusion” between the terms “authority” and
  “jurisdiction”).

                                    27
  — to view health and environmental concerns as overriding.

  Indeed, as discussed above, the Commission’s interpretation that

  the statute requires a balancing of interests is correct.

¶ 46   The Commission has consistently recognized its duty to

  balance health and environmental concerns with the promotion of

  oil and gas development. Our supreme court noted in City of Fort

  Collins v. Colorado Oil & Gas Association, 2016 CO 28, ¶ 29, that,

  consistent with its legislative authorization, “the Commission has

  promulgated an exhaustive set of rules and regulations ‘to prevent

  waste and to conserve oil and gas in the State of Colorado while

  protecting public health, safety, and welfare.’ Dep’t of Nat. Res.

  Reg. 201, 2 [Code Colo.] Regs. 404–1 (2015).”

¶ 47   For these reasons, I would affirm the district court’s order

  upholding the Commission’s order denying Petitioners’ petition for

  rulemaking. In concluding that the district court order should be

  affirmed, I would also reject the Petitioners’ constitutional

  arguments based on the public trust doctrine and that the

  Commission’s interpretation of the Act is an unconstitutional

  infringement of Petitioners’ natural rights to enjoy their lives and

  liberties, protect their property, and obtain their safety and


                                    28
happiness. The Colorado Supreme Court declined to apply the

public trust doctrine in City of Longmont v. Colorado Oil & Gas

Association, 2016 CO 29, ¶ 62.




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