Colorado § 25-7-120 - Judicial review.

§ 25-7-120. Judicial review.

(1) Any final order or determination by the division or the commission shall be subject to judicial review in accordance with the provisions of this article and the provisions of article 4 of title 24, C.R.S.

(2) Any party may move the court to remand the case to the division or the commission in the interests of justice for the purpose of adducing additional specified and material evidence and findings thereon; but such party shall show reasonable grounds for the failure to adduce such evidence previously before the division or the commission.

(3) Any proceeding for judicial review of any final order or determination of the division or the commission shall be filed in the district court for the district in which is located the air pollution source affected.

Source: L. 79: Entire article R&RE, p. 1044, § 1, effective June 20. L. 84: Entire section amended, p. 775, § 11, effective July 1.

ANNOTATION

Law reviews. For article, "The Limits of the Law: Functional Failures of the Air Pollution Variance Board", see 44 U. Colo. L. Rev. 513 (1974). For comment, "Environmental Law — Requirement of Notice in Visual Opacity Readings — Air Pollution Variance Bd. v. Western Alfalfa Corp., 94 S. Ct. 2114 (1974)", see 51 Den. L.J. 603 (1974).

Legislative intent. In prescribing a single local forum for judicial review, the general assembly intended to provide a unified, expedient, and economical means for resolving issues under the air pollution control act. Air Pollution Control Comm'n v. District Court, 193 Colo. 146, 563 P.2d 351 (1977).

In enacting subsection (3), the general assembly sought to provide a single forum for judicial review of "any" final orders or determinations of the commission, since the legislative judgment was that a single, "local" forum would best ensure proper participation by all those parties which had been joined in the administrative proceeding. Air Pollution Control Comm'n v. District Court, 193 Colo. 146, 563 P.2d 351 (1977).

A party seeking judicial review of a commission's final order must file a complaint within thirty-five days of the effective date of the order, even if the party first filed a motion to reconsider and the commission declined to reconsider its order. The plain language of the Colorado Air Pollution Prevention and Control Act and the State Administrative Procedure Act requires a finding that a complaint was untimely when a party filed its complaint sixty-nine days after the effective date of a final order. Sterling Ethanol v. Colo. Air Quality, 2017 COA 26, 413 P.3d 215.

Venue in another forum is improper. Where forum for judicial review is properly determined under subsection (3) of this section, venue in another forum under § 24-4-106 is improper. Air Pollution Control Comm'n v. District Court, 193 Colo. 146, 563 P.2d 351 (1977).

Every order need not directly affect source. The phrase in subsection (3), "in which is located the air contamination source affected", does not mean that every appealable order or determination arising out of the agency proceeding must directly "affect" the air contamination source. Air Pollution Control Comm'n v. District Court, 193 Colo. 146, 563 P.2d 351 (1977).

Collateral questions are subject to venue provisions. When an agency proceeding "affects" an air contamination source, then even collateral questions decided in that proceeding will be subject to the venue provisions of subsection (3). Air Pollution Control Comm'n v. District Court, 193 Colo. 146, 563 P.2d 351 (1977).

Effect of existence of separate ancillary claim. The existence of a separate claim, ancillary to an order properly reviewed under the venue provision of subsection (3), does not create an independent basis for venue in a forum other than that prescribed by subsection (3). Air Pollution Control Comm'n v. District Court, 193 Colo. 146, 563 P.2d 351 (1977).

This section does not explicitly confer on a subordinate agency the right to seek judicial review of a decision of the air quality control commission. Weld County Colo. Bd. of County Comm'rs v. Ryan, 2022 COA 26, 511 P.3d 663, aff'd on other grounds, 2023 CO 54, 536 P.3d 1254.