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 

¶ 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, 
2 

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). 
3 

¶ 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 thirtyfive 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. 
4 

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 
5 

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 
6 

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.”). 
7 

¶ 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 
8 

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
9 

§ 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 decisionmaker 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. 
10 

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.