Colorado § 34-33-128 - Judicial review.

§ 34-33-128. Judicial review.

(1) Any order or decision issued by the board in a civil penalty proceeding, or in a proceeding under section 34-33-126 to establish an unsuitability designation, or in any proceeding required to be conducted pursuant to article 4 of title 24, C.R.S., shall be subject to judicial review on or before thirty days after the date of such order or decision in accordance with subsection (2) of this section in the district court of this state for the district in which the surface coal mining operation is located. In the case of a proceeding to review an order or decision issued by the board under section 34-33-124, the court shall have jurisdiction to enter an order requiring payment of any civil penalty assessment enforced by its judgment.

(2) The court shall hear such petition or complaint solely on the record made before the board. The findings of the board, if supported by substantial evidence on the record considered as a whole, shall be conclusive. The court may affirm, vacate, or modify any order or decision or may remand the proceedings to the board for such further action as it may direct.

(3) In the case of a proceeding to review any order or decision issued by the board under this article, the court may, under such conditions as it may prescribe, grant such temporary relief as it deems appropriate pending final determination of the proceedings if:

(a) All parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief;

(b) The person requesting such relief shows that there is a substantial likelihood that he will prevail on the merits of the final determination of the proceeding; and

(c) Such relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air, or water resources.

(4) At the request of any party to a proceeding under this section, the court may assess costs and expenses, including attorney fees, against any party, as the court deems just and proper.

(5) The commencement of a proceeding under this section shall not, unless specifically ordered by the court, operate as a stay of the action, order, or decision of the board.

Source: L. 79: Entire article added, p. 1300, § 1, effective July 1.

ANNOTATION

A district court is only statutorily authorized to award fees incurred on judicial review and not for underlying administrative proceedings. Subsection (4) is devoted exclusively to the procedures for judicial review of a mined land reclamation board ruling and does not contemplate or reference underlying administrative proceedings. Fontanari v. Snowcap Coal Co., 2023 COA 29, 531 P.3d 1073.

A fee award under subsection (4) is not "just and proper" absent a finding of bad faith. Fontanari v. Snowcap Coal Co., 2023 COA 29, 531 P.3d 1073.