Bd. of Cnty. Comm'rs of the Cnty. of La Plata v. Colo. Dep't of Pub. Health & Env’t

490 P.3d 695

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.

Court of Appeals No. 18CA1551

Colorado Court of Appeals, Division VII.

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

Opinion by JUDGE FOX

¶ 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.

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

¶ 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) 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 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 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 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, 446 P.3d 963. "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, 487 P.3d 701 (citing Carrera v. People , 2019 CO 83, ¶ 18, 449 P.3d 725 ).

¶ 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 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 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...