2021 Colorado Code
Title 24 - Government - State
Article 4 - Rule-Making and Licensing Procedures by State Agencies
Part 1 - General
§ 24-4-106. Judicial Review

1. In order to assure a plain, simple, and prompt judicial remedy to persons or parties adversely affected or aggrieved by agency actions, the provisions of this section shall be applicable.
2. Final 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. In the event specific provisions for rehearing as a basis for judicial review as applied to any particular agency are in effect on or after July 1, 1969, then such provisions shall govern the rehearing and appeal procedure, the provisions of this article to the contrary notwithstanding.
3. An action may be commenced in any court of competent jurisdiction by or on behalf of an agency for judicial enforcement of any final order of such agency. In any such action, any person adversely affected or aggrieved by such agency action may obtain judicial review of such agency action.
4. Except as provided in subsection (11) of this section, any person adversely affected or aggrieved by any agency action may commence an action for judicial review in the district court within thirty-five days after such agency action becomes effective; but, if such agency action occurs in relation to any hearing pursuant to section 24-4-105, then the person must also have been a party to such agency hearing. A proceeding for such review may be brought against the agency by its official title, individuals who comprise the agency, or any person representing the agency or acting on its behalf in the matter sought to be reviewed. The complaint shall state the facts upon which the plaintiff bases the claim that he or she has been adversely affected or aggrieved, the reasons entitling him or her to relief, and the relief which he or she seeks. Every party to an agency action in a proceeding under section 24-4-105 not appearing as plaintiff in such action for judicial review shall be made a defendant; except that, in review of agency actions taken pursuant to section 24-4-103, persons participating in the rule-making proceeding need not be made defendants. Each agency conducting a rule-making proceeding shall maintain a docket listing the name, address, and telephone number of every person who has participated in a rule-making proceeding by written statement, or by oral comment at a hearing. Any person who commences suit for judicial review of the rule shall notify each person on the agency's docket of the fact that a suit has been commenced. The notice shall be sent by first-class certified mail within fourteen days after filing of the action and shall be accompanied by a copy of the complaint for judicial review bearing the action number of the case. Thereafter, service of process, responsive pleadings, and other matters of procedure shall be controlled by the Colorado rules of civil procedure. An action shall not be dismissed for failure to join an indispensable party until an opportunity has been afforded to an affected party to bring the indispensable party into the action. The residence of a state agency for the purposes of this subsection (4) shall be deemed to be the city and county of Denver. In any action in which the plaintiff seeks judicial review of an agency decision made after a hearing as provided in section 24-4-105, the parties after issue is joined shall file briefs within the time periods specified in the Colorado appellate rules.

   (4.5) Subject to the limitation set forth in section 39-8-108 (2), C.R.S., the board of county commissioners of any county of this state may commence an action in the Denver district court within the time limit set forth in subsection (4) of this section for judicial review of any agency action which is directed to any official, board, or employee of such county or which involves any duty or function of any official, board, or employee of such county with the consent of said official, board, or employee, and to the extent that said official, board, or employee could maintain an action under subsection (4) of this section. In addition, in any action brought against any official, board, or employee of a county of this state for judicial enforcement of any final order of any agency, the defendant official, board, or employee may obtain judicial review of such agency action. In any such action for judicial review, the county official, board, or employee shall not be permitted to seek temporary or preliminary injunctive relief pending a final decision on the merits of its claim.

   (4.7) The county clerk and recorder of any county may commence an action under this section in the Denver district court for judicial review of any final action issued by the secretary of state arising under the "Uniform Election Code of 1992", articles 1 to 13 of title 1, C.R.S. In any such action, the county clerk and recorder may seek temporary or preliminary injunctive relief pending a final decision on the merits of the claim as permitted under this section.
5. Upon a finding that irreparable injury would otherwise result, the agency, upon application therefor, shall postpone the effective date of the agency action pending judicial review, or the reviewing court, upon application therefor and regardless of whether such an application previously has been made to or denied by any agency, and upon such terms and upon such security, if any, as the court shall find necessary and order, shall issue all necessary and appropriate process to postpone the effective date of the agency action or to preserve the rights of the parties pending conclusion of the review proceedings.
6. In every case of agency action, the record, unless otherwise stipulated by the parties, shall include the original or certified copies of all pleadings, applications, evidence, exhibits, and other papers presented to or considered by the agency, rulings upon exceptions, and the decision, findings, and action of the agency. Any person initiating judicial review shall designate the relevant parts of such record and advance the cost therefor. As to alleged errors, omissions, and irregularities in the agency record, evidence may be taken independently by the court.
7. 1. If the court finds no error, it shall affirm the agency action. (7) (a) If the court finds no error, it shall affirm the agency action.
   2. The court shall hold unlawful and set aside the agency action and shall restrain the enforcement of the order or rule under review, compel any agency action to be taken that has been unlawfully withheld or unduly delayed, remand the case for further proceedings, and afford other relief as may be appropriate if the court finds that the agency action is:
      1. Arbitrary or capricious;
      2. A denial of statutory right;
      3. Contrary to constitutional right, power, privilege, or immunity;
      4. In excess of statutory jurisdiction, authority, purposes, or limitations;
      5. Not in accord with the procedures or procedural limitations of this article 4 or as otherwise required by law;
      6. An abuse or clearly unwarranted exercise of discretion;
      7. Based upon findings of fact that are clearly erroneous on the whole record;
      8. Unsupported by substantial evidence when the record is considered as a whole; or
      9. Otherwise contrary to law, including failing to comply with section 24-4-104 (3)(a) or 24-4-105 (4)(b).

   3. In making the findings specified in this subsection (7), the court shall review the whole record or portions of the record cited by any party.
   4. In all cases under review, the court shall determine all questions of law and interpret the statutory and constitutional provisions involved and shall apply the interpretation to the facts duly found or established.

8. Upon a showing of irreparable injury, any court of competent jurisdiction may enjoin at any time the conduct of any agency proceeding in which the proceeding itself or the action proposed to be taken therein is clearly beyond the constitutional or statutory jurisdiction or authority of the agency. If the court finds that any proceeding contesting the jurisdiction or authority of the agency is frivolous or brought for the purpose of delay, it shall assess against the plaintiff in such proceeding costs and a reasonable sum for attorney fees (or an equivalent sum in lieu thereof) incurred by other parties, including the state.
9. The decision of the district court shall be subject to appellate review as may be permitted by law or the Colorado appellate rules, but a notice of intent to seek appellate review must be filed with the district court within forty-nine days after its decision becomes final. If no notice of intent to seek appellate review is filed with the trial court within forty-nine days after its decision becomes final, the trial court shall immediately return to the agency its record. Upon disposition of a case in an appellate court which requires further proceedings in the trial court, the agency's record shall be returned to the trial court. On final disposition of the case in the appellate court when no further proceedings are necessary or permitted in the trial court, the agency's record shall be returned by the appellate court to the agency with notice of such disposition to the trial court or to the trial court, in which event the agency's record shall be returned by the trial court to the agency.
10. In any judicial review of agency action, the district court or the appellate court shall advance on the docket any case which in the discretion of the court requires acceleration.
11. 1. Whenever judicial review of any agency action is directed to the court of appeals, the provisions of this subsection (11) shall be applicable except for review of orders of the industrial claim appeals office. (11) (a) Whenever judicial review of any agency action is directed to the court of appeals, the provisions of this subsection (11) shall be applicable except for review of orders of the industrial claim appeals office.
    2. Such proceeding shall be commenced by the filing of a notice of appeal with the court of appeals within forty-nine days after the date of the service of the final order entered in the action by the agency, together with a certificate of service showing service of a copy of said notice of appeal on the agency and on all other persons who have appeared as parties to the action before the agency. The date of service of an order is the date on which a copy of the order is delivered in person or, if service is by mail, the date of mailing.
    3. The record on appeal shall conform to the provisions of subsection (6) of this section. The designation and preparation of the record and its transmission to the court of appeals shall be in accordance with the Colorado appellate rules. A request for an extension of time to transmit the record shall be made to the court of appeals and may be granted only by that court.
    4. The docketing of the appeal and all procedures thereafter shall be as set forth in the Colorado appellate rules. The agency shall not be required to pay a docket fee. All persons who have appeared as parties to the action before the agency who are not designated as appellants shall, together with the agency, be designated as appellees.
    5. The standard for review as set forth in subsection (7) of this section shall apply to appeals brought under this subsection (11).

Source: L. 59: p. 164, § 5. CRS 53: § 3-16-5. C.R.S. 1963: § 3-16-5. L. 69: pp. 89, 268, §§ 6, 2. L. 76: (4) amended, p. 584, § 18, effective May 24. L. 79: (4.5) added, p. 843, § 2, effective May 26. L. 81: (4) amended and (11) added, pp. 890, 1134, 1142, §§ 4, 4, 1, effective July 1. L. 86: (11)(a) amended, p. 498, § 117, effective July 1. L. 87: (9) amended, p. 921, § 1, effective June 20. L. 93: (6) amended, p. 1330, § 5, effective June 6. L. 2012: (4) amended, (SB 12-175), ch. 208, p. 880, § 144, effective July 1. L. 2013: (9) and (11)(b) amended, (HB 13-1126), ch. 58, p. 192, § 5, effective July 1. L. 2014: (4.7) added, (HB 14-1354), ch. 159, p. 553, § 2, effective May 9. L. 2018: (7) amended, (HB 18-1224), ch. 288, p. 1783, § 3, effective May 29.

Analysis

• I. General Consideration.
• II. Applicability.
• III. Commencement of Action.
• IV. Finality and Exhaustion of Administrative Remedies.
• V. Parties.
• VI. Relief Granted.
• VII. Record on Review.
• VIII. Standard of Review.

Law reviews. For comment, "Standing of State Political Subdivisions to Challenge State Agency Rulings Under the Colorado Administrative Procedure Act", see 53 Den. L.J. 437 (1976). For article, "Discovery and Judicial Review in State Administrative Practice", see 10Colo. Law. 2490 (1981). For article, "Property Tax Assessments in Colorado", see 12Colo. Law. 563 (1983). For article, "Administrative Law", which discusses Tenth Circuit decisions dealing with judicial review, see 61 Den. L. J. 121 (1984). For article, "Administrative Law", which discusses Tenth Circuit decisions dealing with judicial review, see 62 Den. U. L. Rev. 18 (1985). For article, "Appealing Property Tax Assessments", see 15Colo. Law. 798 (1986). For article, "Administrative Law", which discusses Tenth Circuit decisions dealing with judicial review, see 64 Den. U.L. Rev. 125 (1987). For article, "Prosecuting an Appeal from a Decision of the Colorado Public Utilities Commission", see 16Colo. Law. 2163 (1987). For article, "Winning an Appeal From A Decision of the Colorado Public Utilities Commission", see 17Colo. Law. 1529 (1988). For article, "Challenges to Agency Rules in Adjudicatory-Type Hearings", see 17Colo. Law. 1991 (1988). For article, "Legislative and Judicial Oversight of Rulemaking", see 18Colo. Law. 246 (1989). For article, "Can Colorado Administrative Agencies Settle Judicial Review Actions", see 19Colo. Law. 835 (1990). For article, "Appellate Advocacy in Administrative Law Cases", see 22Colo. Law. 27 (1993). For article, "Doctrine of Exhaustion of Administrative Remedies as an Offensive Tool", see 38Colo. Law. 53 (Oct. 2009). For article, "Staying Enforcement of a Judgment Pending Appeal", see 48Colo. Law. 30 (May 2019).

Subsection (4) is not violative of § 21 of art. VI, Colo. Const., since this section does not impinge on the supreme court's rule-making power. Warren Vill., Inc. v. Bd. of Assmt. Appeals, 619 P.2d 60 (Colo. 1980).

Nature of judicial review. Judicial review pursuant to subsection (6) is an original proceeding and not an appeal. Tassian v. People, 696 P.2d 825 (Colo. App. 1984), rev'd on other grounds, 731 P.2d 672 (Colo. 1987).

Subsection (7) gives a court plenary authority to review and remand a case for further proceedings if it concludes that the agency has acted contrary to law. City & County of Denver v. Bd. of Assessment Appeals, 947 P.2d 1373 (Colo. 1997).

Although agency should have adopted a rule pursuant to the State Administrative Procedure Act (APA) prior to engaging in unauthorized conduct, that did not remove the jurisdictional requirement that a party seek judicial review of the final agency action within 30 days of an agency's final action. Jefferson Sch. Dist. R-1 v. Div. of Labor, 791 P.2d 1217 (Colo. App. 1990).

When an administrative remedy has not been sought in a timely manner, C.R.C.P. 57 does not provide jurisdiction for judicial review. Jefferson Sch. Dist. R-1 v. Div. of Labor, 791 P.2d 1217 (Colo. App. 1990).

This section governing judicial review of final agency action does not expand power of courts to initiate and compel administrative action beyond that available under C.R.C.P. 106. Jones v. Bd. of Chiropractic Exam'rs, 874 P.2d 493 (Colo. App. 1994).

Section only addresses procedures of review available once it is established that the dispute is properly brought under some other statutory section. This section alone does not create a legally protected right so as to confer standing to seek judicial review. Dolores Huerta Prep. High v. Colo. State Bd. of Educ., 215 P.3d 1229 (Colo. App. 2009).

District court has subject matter jurisdiction over appeal of jeopardy assessment made pursuant to § 39-21-111 where no notice of deficiency has been issued. A proceeding under this section was proper because there was no conflict with any other statute and there was final agency action where the tax was determined, a demand for payment was issued, and there were no administrative remedies under § 39-21-101 et seq. to exhaust. Flores v. Dept. of Rev., 802 P.2d 1175 (Colo. App. 1990).

Section applies to review of board of assessment appeals' (BAA) denial of abatement petition. Capital Assoc. Intern. v. Arapahoe Comm'rs, 802 P.2d 1180 (Colo. App. 1990).

Mined land reclamation board orders are final and subject to judicial review, notwithstanding the filing of a motion for reconsideration and denial of such motion by the board. The filing of such a motion is not authorized by law, and does not extend the time within which to seek judicial review of the order. Cheney v. State of Colo. Mined Land Reclamation Bd., 826 P.2d 367 (Colo. App. 1991).

Board acted arbitrarily and capriciously within the meaning of subsection (7) in refusing to hold an evidentiary hearing upon employee's disagreements with involuntary transfers where the reasons given by the board do not justify its order of denial, where the hearing officer found, based upon information submitted to her, that employee's allegations were facially supported, and where a proper determination of employee's contentions would require factual determinations that could only be made after an evidentiary hearing. Ivy v. State Pers. Bd., 860 P.2d 602 (Colo. App. 1993).

BAA has no authority to dismiss an administrative appeal based on a taxpayer's failure to comply with non-statutory procedural requirements. Fleisher-Smyth v. Bd. of Assessment App., 865 P.2d 922 (Colo. App. 1993).

Any right that may have existed to obtain review of a prison disciplinary action under the APA was eliminated by the enactment of § 17-1-111. Crawford v. State Dept. of Corr., 895 P.2d 1156 (Colo. App. 1995).

Applied in Evans v. Simpson, 190Colo. 426, 547 P.2d 931 (1976); Dixon v. Bd. of Optometric Exam'rs, 39 Colo. App. 200, 565 P.2d 960 (1977); Harris v. Owen, 39 Colo. App. 494, 570 P.2d 26 (1977); Van Pelt v. State Bd. for Cmty. Colls. & Occupational Educ., 195Colo. 316, 577 P.2d 765 (1978); Stortz v. Dept. of Rev., 195Colo. 325, 578 P.2d 229 (1978); Arnold v. Charnes, 41 Colo. App. 338, 589 P.2d 1373 (1978); Marin v. Dept. of Rev., 41 Colo. App. 557, 591 P.2d 1336 (1978); Cloverleaf Kennel Club, Inc. v. Racing Comm'n, 42 Colo. App. 13, 592 P.2d 1341 (1978); Enriquez v. Merit Sys. Council, 197Colo. 14, 589 P.2d 492 (1979); Nesbit v. Indus. Comm'n, 43 Colo. App. 398, 607 P.2d 1024 (1979); Gilbert v. Sch. Dist. No. 50, 485 F. Supp. 505 (D.Colo. 1980); Red Seal Potato Chip Co. v. Civil Rights Comm'n, 44 Colo. App. 381, 618 P.2d 697 (1980); Hoehl v. Motor Vehicle Div., 624 P.2d 907 (Colo. App. 1980); Davis v. Dept. of Rev., 623 P.2d 874 (Colo. 1981); Bernstein v. Livingston, 633 P.2d 519 (Colo. App. 1981); Franco v. District Court, 641 P.2d 922 (Colo. 1982); State ex rel. Dept. of Health v. I.D.I., Inc., 642 P.2d 14 (Colo. App. 1981); Nat'l Wildlife Fed'n v. Cotter Corp., 646 P.2d 393 (Colo. App. 1981); Citizens for Free Enter. v. Dept. of Rev., 649 P.2d 1054 (Colo. 1982); Crocker v. Dept. of Rev., 652 P.2d 1067 (Colo. 1982); Lee v. Bd. of Dental Exam'rs, 654 P.2d 839 (Colo. 1982); BA Leasing Corp. v. Bd. of Assmt. Appeals, 653 P.2d 80 (Colo. App. 1982); Thompson v. Bd of Educ., 668 P.2d 954 (Colo. App. 1983); Laredo Hous. Apts., Ltd. v. Bd. of Assmt. Appeals, 675 P.2d 23 (Colo. App. 1983); Mondragon v. Poudre Sch. Dist. R-1, 696 P.2d 831 (Colo. App. 1984); City & County of Denver v. Indus. Comm'n, 707 P.2d 1008 (Colo. App. 1985), cert. denied, 733 P.2d 680 (Colo. 1987); City Bd. of Equal. v. Bd. of Assmt. Appeals, 743 P.2d 444 (Colo. App. 1987); Eckley v. Colo. Real Estate Comm'n, 752 P.2d 68 (Colo. 1988); Farmers Cafe v. State Dept. of Rev., 752 P.2d 1064 (Colo. App. 1988); Golden Gate Dev. v. Gilpin Cty. Bd., 856 P.2d 72 (Colo. App. 1993); Kelley v. Grand County Bd. of Equaliz., 934 P.2d 929 (Colo. App. 1997); Wildwood Child & Adult Care Program, Inc. v. Colo. Dept. of Pub. Health & Env't, 985 P.2d 654 (Colo. App. 1999); Schlapp ex rel. Schlapp v. Dept. of Health,2012 COA 105, 284 P.3d 177; Craig v. Masterpiece Cakeshop, Inc.,2015 COA 115, 370 P.3d 272, rev'd on other grounds sub nom. Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Comm'n, __ U.S. __, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (2018).

Section applicable to revocation of driver's license. Appellate review by the district court of a department of revenue order revoking a driver's license is governed by this article. Donelson v. Dept. of Rev., 38 Colo. App. 354, 561 P.2d 345 (1976).

The APA and, specifically, this section, constitute the exclusive means through which a person may seek judicial review of the revocation under <cite class="occo"><a href="gov.co.crs.title.42.html#t42-regulationofvehiclesandtraffic-ar04-p12-s42-4-1202" target="_blank">§ 42-4-1202</a></cite> (3)(f) (now <cite class="occo"><a href="gov.co.crs.title.42.html#t42-drivers'licenses-ar02-p01-s42-2-126" target="_blank">§ 42-2-126</a></cite>) of a driver's license. People v. District Court, 200Colo. 65, 612 P.2d 87 (1980).

A request for extraordinary relief in the form of mandamus under C.R.C.P. 106 was improper to challenge arbitrary action by the department of revenue in revoking a person's driver's license, even though petition was filed on the basis that the department refused to conduct a revocation hearing. The APA provides the proper mechanism for seeking relief based on arbitrary action by an executive agency. Dept. of Rev. v. District Court, 802 P.2d 473 (Colo. 1990).

And to commission of insurance when functioning in adjudicatory capacity. If the commissioner of insurance holds a hearing pursuant to subsections (3) and (4) upon the application of an "aggrieved" person, insurer, or rating organization to determine whether he shall affirm, reverse, or modify his previous action, he is then functioning in an adjudicatory or quasi-judicial capacity and the procedures employed by him must conform to standards prescribed in the administrative code. Carroll v. Barnes, 169Colo. 277, 455 P.2d 644 (1969).

<b> And to certain actions of state engineer. </b> The modified doctrine of prior appropriation provided for in the Colorado ground water management act applies to nontributary ground water, and rights to such water in designated ground water basins must be obtained through the procedures established in that act. Rights to nontributary ground water not located in a designated basin may be obtained only through application for a well permit from the state engineer under <cite class="occo"><a href="gov.co.crs.title.37.html#t37-undergroundwater-ar90-s37-90-137" target="_blank">§ 37-90-137</a></cite>. Review of the state engineer's action on well permit applications may be obtained under this section, as prescribed by <cite class="occo"><a href="gov.co.crs.title.37.html#t37-undergroundwater-ar90-s37-90-115" target="_blank">§ 37-90-115</a></cite>, for appeals taken before the 1983 revision of <cite class="occo"><a href="gov.co.crs.title.30.html#t30-ar90-s30-90-115" target="_blank">§ 30-90-115</a></cite> became applicable. Dept. of Natural Res. v. Sw. Colo. Water Conservation Dist., 671 P.2d 1294 (Colo. 1983), cert. denied, 466 U.S. 944, 104 S. Ct. 1929, 80 L. Ed. 2d 474 (1984).

Subsection (7) standards do not apply to the initiative title setting review board when it holds a meeting for designating and fixing a title, ballot title and submission clause, and summary. Specific process and procedure is set out in the initiative and referendum statutes. Matter of Title, Ballot Title et al., 831 P.2d 1301 (Colo. 1992).

Section is not inapplicable to the adjudication of state water engineers' regulations. Kuiper v. Well Owners Conservation Ass'n, 176Colo. 119, 490 P.2d 268 (1971).

Nor to insurance commissioner functioning in quasi-legislative capacity. When the commissioner of insurance conducts a hearing, either on his own initiative or at the request of a filing insurer or rating organization, prior to the approval or disapproval by him of a rate filing, he is functioning in a quasi-legislative capacity and the validity of the procedure which he follows is not to be determined by standards provided in the administrative code. Carroll v. Barnes, 169Colo. 277, 455 P.2d 644 (1969).

Nor to workmen's compensation cases. The appeal procedures under the workmen's compensation act are complete and definitive and constitute an organic act which is self-operational without the need of supplementation from the APA. Zappas v. Indus. Comm'n, 36 Colo. App. 319, 543 P.2d 101 (1975).

<b> Nor to order revoking permission to remit sales taxes on cash basis. </b> Section <cite class="occo"><a href="gov.co.crs.title.39.html#t39-generalandadministrative-ar21-s39-21-105" target="_blank"> 39-21-105</a></cite> specifically, and article 21 of title 39 generally, prescribe the procedure for the determination and review of deficiencies in tax payments. So, while this section governs the defendant's appeal of the department's final deficiency determination, it does not govern the defendant's challenge to the order revoking its permission to remit sales taxes on a cash basis. Dept. of Rev. v. District Court, 193Colo. 553, 568 P.2d 1157 (1977).

Nor to local licensing authority actions. Because the Denver department of excise and licenses is not a state agency with statewide territorial jurisdiction, the decisions of its director are not within the ambit of review procedures under this section. Two G's, Inc. v. Kalbin, 666 P.2d 129 (Colo. 1983).

Nor to private hospital's peer review process. A private hospital's peer review process is not subject to judicial review under this article. Crow v. Penrose-St. Francis Healthcare,2012 COA 43, 292 P.3d 1018.

The actions of the approved treatment provider review board within the department of corrections denying a treatment provider as an approved treatment provider for the department is exempt from review under this section. Wisdom Works Counseling v. Dept. of Corr.,2015 COA 118, 360 P.3d 262.

Referring doctors to the Colorado medical board for possible Medical Practice Act violations that the board may then further investigate is not a "proceeding" for the court to enjoin under this section. Doe 1 v. Dept. of Pub. Health & Env't,2018 COA 106, 454 P.3d 327, aff'd, 2019 CO 92, 450 P.3d 851.

Colorado rules of civil procedure provide an available remedy for a prisoner who is still held within the period of his sentence. Peterson v. Ricketts, 495 F. Supp. 312 (D.Colo. 1980).

This section is not applicable to the adjustment of the timing and manner of inmate's restitution payments. Jones v. Colo. Dept. of Corr., 53 P.3d 1187 (Colo. App. 2002).

In absence of statutory provision, standing is conferred by implied right of action. Where statutory provisions do not specify what counts as an actionable injury, the law of implied private rights of action furnishes a model for whether the substantive law creates rights the invasion of which confers standing under the APA. Cloverleaf Kennel Club, Inc. v. Racing Comm'n, 620 P.2d 1051 (Colo. 1980).

Nominal availability of judicial review does not preclude action seeking declaratory relief. The nominal availability of judicial review under subsection (4) of this section or C.R.C.P. 106(a)(4) does not preclude a C.R.C.P. 57 action seeking declaratory relief if, in the context of a particular controversy, the remedy afforded by this section or by certiorari review would be inadequate. Collopy v. Wildlife Comm'n, 625 P.2d 994 (Colo. 1981).

Permissible to join actions. It is permissible to join a § 24-4-106 action and a C.R.C.P. 57 action for purposes of review. Utah Int'l, Inc. v. Bd. of Land Comm'rs, 41 Colo. App. 72, 579 P.2d 96 (1978).

Failure to pursue other remedies may bar declaratory judgment. The plaintiff's failure to pursue remedies provided in this section and in C.R.C.P. 106(a) in a timely manner bars a declaratory judgment action, following an agency's adverse interpretation of a statute. Greyhound Racing Ass'n v. Racing Comm'n, 41 Colo. App. 319, 589 P.2d 70 (1978).

<b> Declaratory action is not invariably barred by expiration of this section's filing period. </b> While agency rules and regulations are indeed reviewable under subsection (4), expiration of that subsection's filing period does not invariably bar as untimely a C.R.C.P. 57, action attacking the constitutionality of an administrative regulation promulgated by <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar04-s24-4-103" target="_self">§ 24-4-103</a></cite> rule-making. Collopy v. Wildlife Comm'n, 625 P.2d 994 (Colo. 1981).

A person to whom an agency regulation is allegedly being unconstitutionally applied need not defy that regulation to obtain a judicial determination of its validity, but may instead commence a suit under C.R.C.P. 57 and an action for declaratory relief brought under these circumstances will not be barred because the time period prescribed by subsection (4) has elapsed since the agency regulation under attack became effective. Collopy v. Wildlife Comm'n, 625 P.2d 994 (Colo. 1981).

Amendment of pleadings governed by rules of civil procedure. The propriety of amendments to pleadings in actions for judicial review under this section is governed by the rules of civil procedure. People v. District Court, 200Colo. 65, 612 P.2d 87 (1980).

Amendment allowed where mistaken reference to basis of court's jurisdiction. Where the sole amendment required to bring a cause of action within the APA is a deletion of a mistaken reference to C.R.C.P. 106(a)(4), as the basis for the court's jurisdiction, and the substitution of a reference to this section, and where in all other respects, the petition states a cause of action under this section, an amendment to the petition should be allowed pursuant to C.R.C.P. 15(a). People v. District Court, 200Colo. 87, 612 P.2d 87 (1980).

A complaint for judicial review must be filed within 30 days after final agency action even if the claim is a contract claim. Buzick v. Pub. Emp. Ret. Ass'n, 849 P.2d 869 (Colo. App. 1992) (decided under former law).

A complaint in the district court seeking to challenge an administrative ruling concerning attorney fees entered subsequent to a decision on the merits must be filed within 30 days after the ruling. Allen Homesite Group v. Colo. Water Quality Control Comm'n, 19 P.3d 32 (Colo. App. 2000) (decided under former law).

Appeal filed within 30 days of service of order from Colorado oil and gas commission timely even if § 34-60-108 (6) provides that such orders are entered as of the date entered into the books of the commission. Richmond Petroleum v. Oil & Gas Conservation Comm'n, 907 P.2d 732 (Colo. App. 1995) (decided under former law).

Colorado water quality control division's failure to act on a request for a temporary water discharge permit within 180 days constituted final agency action, thereby requiring any district court complaint concerning said action to be filed within 30 days after the end of the 180-day period. Roosevelt Tunnel, LLC v. Norton, 89 P.3d 427 (Colo. App. 2003) (decided under former law).

Motion to amend filed after expiration of 30-day period is allowed. Although a motion to amend is filed approximately one month after the 30-day period prescribed by subsection (4) has expired, leave to amend should be granted under C.R.C.P. 15(a) and where the amended pleading relates back to the date on which the original petition was filed, the pleading, as amended, states a timely claim for judicial review. Cloverleaf Kennel Club, Inc. v. Racing Comm'n, 620 P.2d 1051 (Colo. 1980) (decided under former law).

Filing of motion to reconsider pursuant to subsection (2) does not extend effective date of agency's final decision. Bethesda Found. v. Colo. Dept. of Soc. Servs., 867 P.2d 1 (Colo. App. 1993); rev'd on other grounds, 877 P.2d 860 (Colo. 1994).

The plain language of subsection (3) requires a party aggrieved by an agency action to commence an action for review, and failure of the party to commence such action in the appropriate district court precludes review of the agency action by the appellate court. Davila v. Merit Sys. Council, 15 P.3d 781 (Colo. App. 2000).

Burden is on the appellants to make timely filing of their opening brief pursuant to subsection (4) and C.A.R. 31. It is within the court's discretion to dismiss an appeal if the appellant has not complied with the statutory time limitations for filing briefs. Warren Vill., Inc. v. Bd. of Assmt. Appeals, 619 P.2d 60 (Colo. 1980).

Judicial review of agency action pursuant to subsection (4) is subject to the time limitations specified in C.A.R. 31(a). Dismissal for failure to comply with statutory time limitations for filing briefs is left within the trial court's discretion. DuPuis v. Charnes, 668 P.2d 1 (Colo. 1983).

Time for review where no specific decision challenged. Where there is no specific decision being challenged, and consequently no specific date from which to reckon the time for filing for judicial review, the standard must be that the action is to be brought within a reasonable time. Nat'l Wildlife Fed'n v. Cotter Corp., 665 P.2d 598 (Colo. 1983).

Action for review of tenured teacher's dismissal was barred as untimely where it was not filed within the 45 days during which the teacher was required to seek review pursuant to the Teacher Tenure Act and this section and where the teacher received actual notice of the termination. Talbot v. Sch. Dist. No. 1, 700 P.2d 919 (Colo. App. 1984).

Although the recognized interpretation of issuance of an order is the date of mailing, the mailing occurs on the date that a letter, property addressed, and bearing proper postage, is deposited in the mails. Where governor's decision was mailed without proper postage, his order is deemed effective when actual notice is received. N. Colo. Consortium v. Rural Job Training, 728 P.2d 744 (Colo. App. 1986).

Time limit in subsection (4) applies to actions under both subsection (2) and subsection (3). Where defendant in enforcement action asserted a counterclaim challenging validity of agency action being enforced, and more than 30 days had elapsed since agency action became effective, court was without jurisdiction to entertain the counterclaim. Gibbs v. Colo. Mined Land Reclamation Bd., 883 P.2d 592 (Colo. App. 1994); Allen Homesite Group v. Colo. Water Quality Control Comm'n, 19 P.3d 32 (Colo. App. 2000) (decided under former law).

Subsection (4) does not set date by which appellees must object or be deemed to have waived the brief-filing requirements of this section. Warren Vill., Inc. v. Bd. of Assmt. Appeals, 619 P.2d 60 (Colo. 1980).

Trial court properly dismissed plaintiff's judicial review claim as time-barred under subsection (4). Under subsection (4), any person adversely affected or aggrieved by any agency action may file an action for judicial review in the district court within 30 days after such agency action becomes effective. Moreover, under subsection (2), "unless the filing of an application for reconsideration is required by the statutory provisions governing the specific agency", judicial review must be sought within the 30-day filing requirement, regardless of whether or not a motion for reconsideration has been filed. There is no authority requiring a reconsideration motion before seeking judicial review of department's decisions concerning medicaid. Accordingly, plaintiff's motion for reconsideration did not extend the deadline for commencing a judicial review action. Bates v. Henneberry, 211 P.3d 68 (Colo. App. 2009) (decided under former law).

The parties involved in administrative proceedings are required to exhaust their administrative remedies before seeking judicial review in order to avoid encroaching on the executive function. The exception to this rule, however, is stated in subsection (8). A district court may intervene if the agency proceeding or action clearly exceeds the constitutional or statutory jurisdiction or authority of the agency and the party seeking to enjoin the proceedings shows that the agency action will cause irreparable injury. Envirotest Sys. v. Colo. Dept. of Rev., 109 P.3d 142 (Colo. 2005).

The general rule is that the failure to exhaust administrative remedies prior to seeking judicial relief is a jurisdictional defect. This is especially true in cases involving tax matters, and thus, if there are complete, adequate, and speedy administrative remedies available for alleged tax irregularities, a taxpayer must exhaust them. Kendal v. Cason, 791 P.2d 1227 (Colo. App. 1990).

Right to review arises only after final adverse decision. A statutory provision defining the period within which judicial review can be sought does not become material until after the right to review arises, that is, until after there is a final decision adverse to the claimant. McCartney v. W. Adams County Fire Prot. Dist., 40 Colo. App. 330, 574 P.2d 516 (1978).

Absent final agency action, a district court does not have the authority to interfere with administrative agency proceedings by granting a stay of a public employee's dismissal. State Pers. Bd. v. District Court, 637 P.2d 333 (Colo. 1981).

Until an agency makes a determination, any action of the judiciary is premature. Dept. of Rev. v. District Court, 172Colo. 144, 470 P.2d 864 (1970).

Judiciary cannot interfere even where claim of unconstitutionality. Even a claim that a statute under which the department is proceeding is unconstitutional will not clothe the judiciary with the power to interfere with or control the department in advance of its taking final action. The question of constitutionality is a matter to be raised on appeal after the executive has performed his functions. Dept. of Rev. v. District Court, 172Colo. 144, 470 P.2d 864 (1970); Chonoski v. Dept. of Rev., 699 P.2d 416 (Colo. App. 1985).

The claim of unconstitutionality will not clothe the judiciary with the power to interfere with an administrative agency in advance of its taking final action. Moore v. District Court, 184Colo. 63, 518 P.2d 948 (1974).

A claim that a statute is unconstitutional does not give the judiciary the power under subsection (8) to interfere with an administrative agency in advance of its taking final action. State Pers. Bd. v. District Court, 637 P.2d 333 (Colo. 1981).

Section only addresses procedures of review available once it is established that the dispute is properly brought under some other statutory section. This section alone does not create a legally protected right so as to confer standing to seek judicial review. Dolores Huerta Prep. High v. Colo. State Bd. of Educ., 215 P.3d 1229 (Colo. App. 2009).

Agency statement on law or policy, or procedure or practice, deemed final action. Whole or part of every agency statement of general applicability and future effect implementing, interpreting, or declaring law or policy, or setting forth procedure or practice requirements of any agency is final agency action subject to judicial review and authority to postpone the effective date of agency action pending review. Colo. Bd. of Optometric Exam'rs v. Dixon, 165Colo. 488, 440 P.2d 287 (1968).

<b> Agency's decision reviewing hearing officer's decision is final action. </b> The decision of an agency (other than a remand for further proceedings) described in <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar04-s24-4-105" target="_self">§ 24-4-105</a></cite> (15)(b), is final agency action subject to judicial review under subsection (2). State Pers. Bd. v. District Court, 637 P.2d 333 (Colo. 1981).

But individual votes of members of the state personnel board on motions put before the board do not constitute agency actions. Rather, it is the outcome or effect of those votes that is subject to review. Maggard v. Dept. of Human Servs., 226 P.3d 1209 (Colo. App. 2009), rev'd on other grounds, 248 P.3d 708 (Colo. 2011).

State personnel board order awarding attorney fees, but not establishing the fee amount is a reviewable final agency action. Colo. State Pers. Bd. v. Dept. of Corr., 988 P.2d 1147 (Colo. 1999).

Right to review tax exemption arises only upon board of assessment appeals decision. Where a taxpayer initially applies for a tax exemption prior to the effective date of a statutory provision, but the final administrative decision adverse to the claimant is a board of assessment appeals decision after the statute's effective date, the right to district court review does not arise until that latter date. Warren Vill., Inc. v. Bd. of Assmt. Appeals, 619 P.2d 60 (Colo. 1980).

For purposes of timely filing a claim seeking judicial review of the Colorado economic development commission's award of a project pursuant to the Colorado Regional Tourism Act, final agency action, as required by the APA, did not occur until the Colorado economic development commission adopted a resolution memorializing the terms of the regional tourism authority award. 1405 Hotel, LLC v. Colo. Econ. Dev. Comm'n,2015 COA 127, 370 P.3d 309.

In cases arising under the tenure act, the "final order" for judicial review is certainly the "order" of the board of education required by § 22-63-117 (10). Snyder v. Jefferson City Sch. Dist. No. 1, 707 P.2d 1049 (Colo. App. 1985); Lockhart v. Arapahoe County Sch. District No. 6, 735 P.2d 913 (Colo. App. 1986).

Finality of license revocation by division of motor vehicles. An order of revocation issued at the conclusion of a hearing is final. Inasmuch as motor vehicle statutes are specific as to when an order is effective, when it is final, and when a petition for judicial review is to be filed, they are controlling notwithstanding other conflicting provisions of the APA. Houston v. Dept. of Rev., 699 P.2d 15 (Colo. App. 1985).

Order of board of health reversing and remanding the determination of the hearing officer is not a reviewable final agency action. Colo. Health Facilities Review Council v. District Court, 689 P.2d 617 (Colo. 1984).

Filing of exceptions to the preliminary recommendations of the administrative law judge does not effect the 45-day deadline for filing a notice of appeal from the date of the final agency action. Hussein v. Regents of the Univ. of Colo., 124 P.3d 871 (Colo. App. 2005).

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 APA 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.

Administrative remedies must be exhausted. Before there can be recourse to courts in administrative matters, there must be an exhaustion of administrative remedies. Moschetti v. Liquor Licensing Auth., 176Colo. 281, 490 P.2d 299 (1971).

Normally, judicial review of administrative action is available only after an exhaustion of administrative remedies and final agency action. Bd. of Cosmetology v. District Court, 187Colo. 175, 530 P.2d 1278 (1974); Chonoski v. Dept. of Rev., 699 P.2d 416 (Colo. App. 1985).

Exhaustion of the administrative remedy of an appeal to the Colorado civil rights commission from an adverse ruling of a hearing officer is a prerequisite to the maintenance of a court action challenging the hearing officer's ruling. N. Wash. St. Water & San. Dist. v. Emerson, 626 P.2d 1152 (Colo. App. 1980).

The need for application of the rule requiring exhaustion of remedies becomes more persuasive when the matter in controversy raises the precise questions which are within the expertise of the administrative agency, and are of the very nature the agency was designed to resolve. Downey v. Dept. of Rev., 653 P.2d 72 (Colo. App. 1982).

District court properly dismissed action for lack of jurisdiction since plaintiffs failed to exhaust the administrative remedies available to them which could have afforded them complete relief in the matter. Kendal v. Cason, 791 P.2d 1227 (Colo. App. 1990).

District court does not have jurisdiction under C.R.C.P. 106(a)(4) to review an interlocutory order of a state administrative agency, absent a showing of irreparable harm from such order. T & S Leasing v. District Court, 728 P.2d 729 (Colo. 1986).

District court lacked authority to issue injunctive relief regarding a hearing officer ruling made during an ongoing administrative hearing. Envirotest Sys. v. Colo. Dept. of Rev., 109 P.3d 142 (Colo. 2005).

There is an exception to this rule that judicial review is available only after an exhaustion of administrative remedies provided by subsection (8). Bd. of Cosmetology v. District Court, 187Colo. 175, 530 P.2d 1278 (1974).

Individual may initiate pre-enforcement challenge to regulation's validity. Nothing in the APA denies standing to an individual to initiate a pre-enforcement challenge to the validity of a regulation, if he is subject to its demands. CF&I Steel Corp. v. Colo. Air Pollution Control Comm'n, 199Colo. 270, 610 P.2d 85 (1980).

Trial court erred in dismissing 42 U.S.C. § 1983 claim against the members of the state board for community colleges and occupational education since the availability of judicial review pursuant to this section did not preclude such action. Nat'l Camera, Inc. v. Sanchez, 832 P.2d 960 (Colo. App. 1991).

Applied in Envirotest Sys. v. Colo. Dept. of Rev., 109 P.3d 142 (Colo. 2005).

Counties not included in definition of "party". A county, as an arm of the state board of social services, has no rights or privileges so far as its statutory duties are concerned and, hence, does not come within the definition of "party". Bd. of County Comm'rs v. Bd. of Soc. Servs., 186Colo. 435, 528 P.2d 244 (1974).

Nor board of county commissioners. The board of county commissioners is an "agency" within the meaning of the administrative code and as such is not the person who may seek review of final agency action. Also, boards of county commissioners have no authority to sue as representatives of taxpayers of their counties. Bd. of County Comm'rs v. Love, 172Colo. 121, 470 P.2d 861 (1970) (decided prior to 1979 amendment).

A county and, as such, its board of county commissioners are without standing to challenge an action of the state board of social services, even though they may have been extended the courtesy of presenting evidence at the rule-making hearing. Bd. of County Comm'rs v. Bd. of Soc. Servs., 186Colo. 435, 528 P.2d 244 (1974) (decided prior to 1979 amendment).

Where the state board of social services is a party to judicial review proceedings, as a result of which a settlement agreement was reached, reinstating an employee suspended by a county department of social services, the county board and the county department, as subordinates of the state agency, are bound by the state department's actions settling the judicial review proceedings. Accordingly, the county board and the county department are without standing to seek judicial review of the merit system council's order implementing the settlement agreement, and, pursuant to subsection (4.5), the board of county commissioners is likewise without standing to seek judicial review. Bd. of County Comm'rs v. Merit Sys. Council, 662 P.2d 1093 (Colo. App. 1982).

Nor does a county department of social services have standing to seek judicial review of an action by the state board of social services by the merit system council. Nadeau v. Merit Sys. Council for County Depts. of Soc. Servs., 36 Colo. App. 362, 545 P.2d 1061 (1975) (decided prior to 1979 amendment).

A county department of social services is not an adversely affected or aggrieved "party" empowered to bring an action for judicial review of an agency action within the meaning of this section. Martin v. District Court, 191Colo. 107, 550 P.2d 864 (1976) (decided prior to 1979 amendment).

A county board of commissioners has standing to review an administrative rule that provided that a permit issued pursuant to the rule shall be binding with respect to any conflicting local governmental permit or land use approval process. Bd. of County Comm'rs v. Colo. Oil & Gas Conservation Comm'n, 81 P.3d 1119 (Colo. App. 2003).

Subsection (4) does not grant a county the right to seek judicial review of state department decisions. Romer v. Bd. of County Comm'rs of the County of Pueblo, 956 P.2d 566 (Colo. 1998).

The statute does not confer a substantive legal right on a county to sue for monetary damages. Provisions that include counties within the definition of "person" were not intended to confer substantive rights on counties to sue the state. Romer v. Bd. of County Comm'rs of the County of Pueblo, 956 P.2d 566 (Colo. 1998).

"Party" status required as prerequisite to judicial review. One must comply with the requirements for obtaining "party" status in adjudicatory hearings as a prerequisite to seeking judicial review under the APA. Colo. Water Quality Control Comm'n v. Town of Frederick, 641 P.2d 958 (Colo. 1982).

Right to judicial review is limited to "aggrieved" parties. The right to judicial review of final administrative actions under the APA is limited to those parties to the proceeding before the administrative agency whose rights, privileges, or duties, as distinct from those of the state, are adversely affected by the decision. Bd. of County Comm'rs v. Bd. of Soc. Servs., 186Colo. 435, 528 P.2d 244 (1974); Colo.-Ute Elec. Ass'n v. Air Pollution Control Comm'n, 41 Colo. App. 393, 591 P.2d 1323 (1978), rev'd on other grounds, 199Colo. 270, 610 P.2d 85 (1980).

<b> This section, in conjunction with <cite class="occo"><a href="gov.co.crs.title.34.html#t34-conservationandregulation-ar60-s34-60-111" target="_blank">§ 34-60-111</a></cite>, allows challenges to the issuance of an oil and gas drilling permit by persons other than the permit applicant, owners of surface rights, and a local government. </b> Although citizens' and community groups are not entitled to be heard in connection with a permit application, they may be "persons or parties adversely affected or aggrieved by agency actions" within the meaning of this section, following issuance of the permit. Weld Air v. Colo. Oil &amp; Gas Conservation Comm'n,2019 COA 86, 457 P.3d 727.

"Aggrieved" party defined. Those whose activities are exactly those to which a particular regulation apply, and who will be adversely affected by an application of the regulation, are "aggrieved" parties with standing to seek judicial review of the regulation. CF&I Steel Corp. v. Colo. Air Pollution Control Comm'n, 199Colo. 270, 610 P.2d 85 (1980).

If an administrative rule or order either commands or prohibits action on the part of specific individuals or entities, then those subject to the mandate or prohibition of the rule have sufficient interest and standing to seek judicial review of the administrative action adopting the rule or order under this section. Colo.-Ute Elec. Ass'n v. Air Pollution Control Comm'n, 41 Colo. App. 393, 591 P.2d 1323 (1978), rev'd on other grounds, 199Colo. 270, 610 P.2d 85 (1980).

Party to an adjudicatory determination by an administrative agency may initiate an appeal. Douglas County Bd. of Comm'rs v. Pub. Utils. Comm'n, 829 P.2d 1303 (Colo. 1992).

"Party" need not file alternative to proposed regulation. Status as a "party" in seeking judicial review of agency action does not require that one have filed an alternative to the proposed regulation. CF&I Steel Corp. v. Colo. Air Pollution Control Comm'n, 199Colo. 270, 610 P.2d 85 (1980).

Where there is no allegation of "aggrieved" parties, motion for relief denied. Where a motion for relief does not allege the grounds which, if established, would "aggrieve" parties, the commissioner of insurance does not abuse his discretion in denying the motion. Carroll v. Barnes, 169Colo. 277, 455 P.2d 644 (1969).

Parties held to be aggrieved persons adversely affected by action of board of public welfare (now department of social services). Fields v. Dept. of Pub. Welfare, 165Colo. 118, 437 P.2d 538 (1968).

State property tax administrator is an "agency" and therefore is not entitled to appeal an agency action under this section. Maurer v. Young Life, 751 P.2d 653 (Colo. App. 1987), aff'd in part and rev'd in part on other grounds, 779 P.2d 1317 (Colo. 1989).

Standing to seek tax refund depends on financial burden suffered. One who does not bear the financial burden of a tax suffers no loss or injury and has no standing to seek a refund under this section. Wash. Plaza Assocs. v. Bd. of Assmt. Appeals, 44 Colo. App. 559, 620 P.2d 52 (1980).

Purpose of indispensable party requirement. The purpose of the requirement that every party in the agency action not appearing as a plaintiff shall be made a defendant is to ensure the complete and just adjudication of the rights of those having an interest in the subject matter of the litigation. Cissell v. Bd. of Assmt. Appeals, 38 Colo. App. 560, 564 P.2d 124 (1977).

Joinder of indispensable parties required. An appeal must be perfected--as well as commenced--within the time period established. Part of the perfection of an appeal requires the joinder of indispensable parties. W. Brandt Found., Inc. v. Carper, 44 Colo. App. 137, 608 P.2d 355 (1978), rev'd on other grounds, 199Colo. 334, 608 P.2d 339 (1980).

Joinder of board of assessment appeals required in action for review of a board of assessment appeals' decision. Capital Assoc. Intern. v. Arapahoe Comm'rs, 802 P.2d 1180 (Colo. App. 1990); Colo. Interstate Gas Co. v. Huddleston, 28 P.3d 958 (Colo. App. 2000).

C.R.C.P. 19 is inapplicable to proceedings under this article. Because the general assembly specifically has addressed the question of joinder in this section, C.R.C.P. 19 is not applicable in proceedings brought under the APA. Whether a person or organization meets the statutory requirement as a mandatory party in an action for judicial review depends on whether it should have been included in the administrative proceeding. Town of Frederick v. Colo. Water Quality Control Comm'n, 628 P.2d 129 (Colo. App. 1980), rev'd on other grounds, 641 P.2d 958 (1982).

Language of subsection (4) is mandatory in effect. Cissell v. Bd. of Assmt. Appeals, 38 Colo. App. 560, 564 P.2d 124 (1977); West-Brandt Found., Inc. v. Carper, 199Colo. 334, 608 P.2d 339 (1980).

Mining reclamation board and the division of mined land reclamation are definite and distinct entities and the designation of the division as a party defendant in lieu of a designation of the board in a challenge to the board's issuance of a mining permit was a failure to join an indispensable party, since the board is an indispensable party to such an action. Cold Springs Ranch v. Dept. of Nat. Res., 765 P.2d 1035 (Colo. App. 1988).

Failure to join indispensable party requires dismissal. The failure to join an indispensable party in an action for review of an administrative proceeding is a defect of constitutional proportion requiring dismissal of the action. Cissell v. Bd. of Assmt. Appeals, 38 Colo. App. 560, 564 P.2d 124 (1977).

University is an indispensable party in employment dispute. The university of Colorado is an indispensable party required by this section to be joined in a suit seeking judicial review of a termination of employment at the university. Ricci v. State Pers. Bd., 44 Colo. App. 9, 605 P.2d 492 (1980).

Erroneous designation of agency, where not technical error, precludes determination of merits. Where a proceeding is not brought against the agency whose action is challenged by its official title, the issue is whether the error in designation is a mere technical error which should not preclude a determination of the issues on the merits. Spahn v. Dept. of Pers., 44 Colo. App. 446, 615 P.2d 66 (1980).

The designation of the state department of personnel instead of the state personnel board as the defendant in a suit by a party who had her employment terminated in a hearing before the state personnel board is not a mere technical error and, therefore, the district court should dismiss the complaint for failure to join an indispensable party. Spahn v. Dept. of Pers., 44 Colo. App. 446, 615 P.2d 66 (1980).

Class action relief can be sought for the first time on appeal where review is pursuant to this section. Rodgers v. Atencio, 43 Colo. App. 268, 608 P.2d 813 (1979).

Section allows for declaratory and injunctive relief from an unconstitutional agency action as part of the APA review. Jeffrey v. Colo. Dept. of Soc. Servs., 198Colo. 265, 599 P.2d 874 (1979).

Colorado department of social services is a party for purposes of an administrative proceeding conducted pursuant to this section and as such may be held liable for attorney's fees for asserting a frivolous defense. Colo. Dept. of Soc. Servs. v. Bethesda Care Ctr., Inc., 867 P.2d 4 (Colo. App. 1993).

But assessment of costs against state not allowed. Upon judicial review of administrative action, while subsection (7) permits the court "to afford such other relief as may be appropriate", this provision cannot be construed to authorize the assessment of costs against the state so as to take precedence over C.R.C.P. 54(d). Shumate v. State Pers. Bd., 34 Colo. App. 393, 528 P.2d 404 (1974).

There is no specific statutory provision allowing for the award of costs where an individual pursues his right to judicial review of an administrative hearing officer's actions under § 42-2-127 and this section; such an award is erroneous, because C.R.C.P. 54(d) limits the imposition of costs against the state to "the extent permitted by law". Lucero v. Charnes, 44 Colo. App. 73, 607 P.2d 405 (1980).

Jurisdiction of court to postpone action's effective date limited. The jurisdiction of a district court to postpone the effective date of an agency action is limited to proceedings taken in conjunction with an action for judicial review filed after final agency action. State Pers. Bd. v. District Court, 637 P.2d 333 (Colo. 1981).

There is no constitutional prohibition against requiring irreparable injury showing. Nothing in the constitution of Colorado, or that of the United States, prohibits the general assembly from requiring a showing of irreparable injury as a condition to be met before the postponement of the effective date of agency action shall be brought about. Theobald v. District Court, 148Colo. 466, 366 P.2d 563 (1961).

Showing of irreparable injury constitutes only prerequisite to entry of stay. Under subsection (5), the only prerequisite to an entry of a stay of agency action is a finding that irreparable injury would otherwise result. Dept. of Rev. v. District Court, 193Colo. 553, 568 P.2d 1157 (1977).

Where there is no showing of irreparable injury justifying the postponement of the effective date of an order of the director of revenue suspending a driver's license, and no notice to the director of an application for an order commanding him to restore the license pending determination of review proceedings, the district court is without authority to summarily order restoration of the license. Theobald v. District Court, 148Colo. 466, 366 P.2d 563 (1961).

<b> Section <cite class="occo"><a href="gov.co.crs.title.39.html#t39-generalandadministrative-ar21-s39-21-105" target="_blank"> 39-21-105</a></cite> does not expressly prohibit the entry of a stay </b> as authorized by subsection (5). Dept. of Rev. v. District Court, 193Colo. 553, 568 P.2d 1157 (1977).

Court may provide appropriate temporary relief for driver with suspended license. When a driver whose license has been suspended establishes that irreparable injury would otherwise result if the suspension were effective pending judicial review, a court may provide appropriate relief under subsection (5). Tomasi v. Thompson, 635 P.2d 538 (Colo. 1981).

Court cannot modify administrative relief awarded. To "postpone" the effective date of an agency action means only to hold back to a later time or to defer; it cannot be expanded to include a modification of the administrative relief awarded by substituting a period of restricted driving for a period of full suspension of driving privileges. Tomasi v. Thompson, 635 P.2d 538 (Colo. 1981).

Supreme court not to act as licensing board. It is not within the scope of judicial review for the supreme court to act as a professional licensing board. In re Maul v. State Bd. of Dental Exam'rs, 668 P.2d 933 (Colo. 1983).

Insurance companies allowed to increase rates approved by commissioner. Where a suit challenging an insurance premium rate increase has not been determined, companies can increase rates approved by the commissioner, since the commissioner can order refunds if the increase is held invalid, and since insurance companies would otherwise suffer irreparable injury if the increase were upheld. Nat'l Auto. Underwriters Ass'n v. District Court, 160Colo. 467, 418 P.2d 52 (1966).

No further agency action once judicial review commenced. Once an action for judicial review had been commenced in the district court, the department of revenue has no jurisdiction to enter any further orders in the case until final disposition of the judicial proceedings and a remand of the case to the department, and may not stay an order of license revocation. Marr v. Dept. of Rev., 43 Colo. App. 36, 598 P.2d 155 (1979).

<b> The district court did not err in considering complainant's claims under the judicial review principles of the APA and in remanding the case for further administrative proceedings. </b> When considered in conjunction with <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar04-s24-4-105" target="_self">§ 24-4-105</a></cite>, the purpose of <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank">§ 1-1.5-105</a></cite> (3)(b), the so-called "adjudication clause"of the state version of the federal Help America Vote Act (HAVA), is to spare the secretary and persons filing administrative complaints under the state HAVA from having to observe the numerous, and somewhat complex, procedural requirements contained in <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar04-s24-4-105" target="_self">§ 24-4-105</a></cite>, and to curtail the administrative rights and obligations the parties would ordinarily have in adjudicatory proceedings. The court also rejected the secretary of state's assertion that, if a statute precludes the application of the administrative procedures under <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank">§ 1-1.5-105</a></cite>, it necessarily precludes judicial review under the state APA. Accordingly, the district court had plenary authority under subsection (7) to review and remand this case for further proceedings if it concluded that the agency acted contrary to law. Marks v. Gessler,2013 COA 115, 350 P.3d 883.

The exclusive administrative remedy clause under <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank">§ 1-1.5-105</a></cite> (3)(c) does not limit an aggrieved party's judicial remedies. The clause does not refer to a complainant's available judicial remedies; it refers only to the procedures that constitute the administrative remedy for a violation of title III of the federal HAVA. The plain meaning of "administrative remedy" does not include a judicial remedy. This interpretation is further supported by the appeals clause in <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank">§ 1-1.5-105</a></cite> (4), which allows a person aggrieved by a final determination of the secretary to appeal the decision to the district court, and thus, potentially obtain a judicial remedy. Marks v. Gessler,2013 COA 115, 350 P.3d 883.

<b> Although the APA rules and procedures do not apply to the secretary's resolution of a state HAVA administrative complaint at the agency level, the APA does apply to judicial review in the district court of the secretary's determination. </b> Section <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank"> 1-1.5-105</a></cite> (3)(b) and (3)(c) exclude only the administrative procedure provisions set forth under <cite class="occo"><a href="gov.co.crs.title.24.html#t24-administration-ar04-s24-4-105" target="_self">§ 24-4-105</a></cite>. They do not limit the availability of judicial remedies. At the agency level, a person filing a state HAVA administrative complaint is only entitled to administrative procedures and rights included in the state HAVA statute itself and is not entitled to or burdened by the additional administrative procedures, rights, and obligations provided under the APA. Marks v. Gessler,2013 COA 115, 350 P.3d 883.

<b> Complainant satisfied jurisdictional prerequisites for standing as well as the standing requirements to obtain judicial review of an agency action under the APA and the state HAVA. </b> Complainant had legal standing to maintain her first claim for relief in which she sought judicial review under <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank">§ 1-1.5-105</a></cite> (4) and this section of the dismissal of her state HAVA complaint. Because complainant alleged that defendants deprived her of her legally protected interests in using the administrative complaint procedure to remedy violations of the federal HAVA and a hearing on the record in connection with her state HAVA administrative complaint, she has alleged a sufficient injury in fact. Injury in fact is also supported by complainant's allegations in her administrative complaint that she believed violations of title III of the federal HAVA occurred during the 2010 general election. Marks v. Gessler,2013 COA 115, 350 P.3d 883.

Complainant also suffered an injury to a legally protected interest. Section <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank"> 1-1.5-105</a></cite> (2)(b) provides complainant with a right to file a state HAVA complaint and <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank">§ <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank"> 1-1.5-105</a></cite></a></cite> (2)(g) states that a complainant is entitled to a hearing on the record. In addition, complainant has a right under subsection (2) to seek judicial review of the agency action. Defendants' dismissal of her complaint for lack of standing violated her right to file a state HAVA complaint, and, therefore, she was adversely affected by the decision. Likewise, <cite class="occo"><a href="gov.co.crs.title.01.html#t01-general,primary,recall,andcongressionalvacancyelections-ar1.5-s1-1.5-105" target="_blank">§ 1-1.5-105</a></cite> (4) also provides complainant with a right to seek judicial review of the decision. Marks v. Gessler,2013 COA 115, 350 P.3d 883.

No time limitations relating to filing record. Subsection (6) does not contain any time limitations on filing a designation of record, objecting to or supplementing the record designated, or filing the record. Harris v. District Court, 655 P.2d 398 (Colo. 1982).

Party seeking review must order transcript to make it part of record. The party seeking review is required to order and pay for a transcript of an administrative hearing in order to make it part of the record for purposes of judicial review under this section. Harris v. District Court, 655 P.2d 398 (Colo. 1982).

However, when the party seeking review proceeds in forma pauperis, an alternative method of providing a record of the administrative proceedings may be allowed. Schaffes v. District Court, 719 P.2d 1088 (Colo. 1986); Earl v. District Court, 719 P.2d 321 (Colo. 1986).

Review by district court is limited to the record compiled by the agency. Stream v. Heckers, 184Colo. 149, 519 P.2d 336 (1974).

In certiorari proceedings reviewing an administrative action, the trial court is confined to a review of the record of hearings before the agency. Bd. of County Comm'rs v. Simmons, 177Colo. 347, 494 P.2d 85 (1972).

Remand is mandated where agency order is without findings. Where the civil service commission (now the department of personnel) modifies a dismissal order of the police chief without findings, the district court should remand to the commission (now department) to supply findings, because otherwise there can be no meaningful review on the merits. Lawless v. Bach, 176Colo. 165, 489 P.2d 316 (1971).

Record may not include post-hearing matters. Complaints about other matters filed after the agency hearing upon which the board based its findings of fact and conclusions of law could not pertain to errors, omissions, and irregularities in the agency record, and may not be included in the record on appeal. Harris v. District Court, 655 P.2d 398 (Colo. 1982).

Hearing transcript made part of record considered. If a hearing transcript is ordered, paid for, and made part of the record on appeal, the reviewing court is required to consider it. Loesch v. Dept. of Rev., 194Colo. 169, 570 P.2d 530 (1977).

Appellate court reviews record where lower court reviews only transcript and exhibits. Where a review of a dismissal action in a lower court is only of the transcript and exhibits presented at the agency hearing, the appellate court is in as good a position as the district court to review the record, and it need not remand the case to the lower court for a determination of whether the dismissal was supported by the requisite substantial evidence. Lassner v. Civil Service Comm'n, 177Colo. 257, 493 P.2d 1087 (1972).

Standard of review in the consideration of agency rule-making is reasonableness. Amax, Inc. v. Water Quality Control Comm'n, 790 P.2d 879 (Colo. App. 1989); Brown v. Colo. Ltd. Gaming Control Comm'n, 1 P.3d 175 (Colo. App. 1999).

Under the applicable standard of review, the board of assessment appeals' exemption determination must be sustained if it has a reasonable basis in law and is supported by substantial evidence in the record as a whole. Bd. of Assessment Appeals v. AM/FM Int'l, 940 P.2d 338 (Colo. 1997); Pilgrim Rest Baptist Church, Inc. v. Prop. Tax Adm'r, 971 P.2d 270 (Colo. App. 1998); EchoStar Satellite, L.L.C. v. Arapahoe County Bd. of Equaliz., 171 P.3d 633 (Colo. App. 2007).

Valuation determinations of the board of assessment appeals will not be disturbed on review if the board's factual findings as to the appropriate valuation of the subject property are supported by competent and substantial evidence in the record as a whole. Home Depot USA, Inc. v. Pueblo County Bd. of Comm'rs, 50 P.3d 916 (Colo. App. 2002).

Rules adopted pursuant to a statutory rulemaking proceeding are presumed valid. Brown v. Colo. Ltd. Gaming Control Comm'n, 1 P.3d 175 (Colo. App. 1999).

Judicial review of state agency action under this section is the counterpart to judicial review of local government action under C.R.C.P. 106. Review of agency action, whether in the district court or the court of appeals, is essentially appellate in nature based on the board's administrative record. Bd. of Chiropractic Exam'rs v. Stjernholm, 935 P.2d 959 (Colo. 1997).

The board is collaterally estopped from relitigating, in a § 1983 action, the issue of a summary license suspension decided between the same parties in an earlier proceeding in the absence of new circumstances and a finding by the board that an emergency exists. Bd. of Chiropractic Exam'rs v. Stjernholm, 935 P.2d 959 (Colo. 1997).

Burden on challenging party to establish invalidity of rules adopted pursuant to a statutory rule-making proceeding by demonstrating that the rule-making body acted in an unconstitutional manner, exceeded its statutory authority, or otherwise acted in a manner contrary to statutory requirements. Amax, Inc. v. Water Quality Control Comm'n, 790 P.2d 879 (Colo. App. 1989); Wine & Spirits Wholesalers v. Colo. Dept. of Rev., 919 P.2d 894 (Colo. App. 1996); Brown v. Colo. Ltd. Gaming Control Comm'n, 1 P.3d 175 (Colo. App. 1999).

Agency rules are presumed valid and a plaintiff challenging a rule must establish the invalidity of the rule by demonstrating that the rule-making body exceeded its statutory authority. An agency's construction of its own governing statute is entitled to great weight. Mile High Greyhound Park v. Racing Comm'n, 12 P.3d 351 (Colo. App. 2000).

A reviewing court may reverse an administrative agency's determination if the court finds that the agency acted in an arbitrary and capricious manner, made a determination that is unsupported by the evidence in the record, erroneously interpreted the law, or exceeded its constitutional or statutory authority. Ohlson v. Weil, 953 P.2d 939 (Colo. App. 1997).

The ultimate determination as to the appropriate classification of property for property tax purposes involves mixed issues of law and fact. Under the applicable standard of review, the board of assessment appeal's property classification determination must be sustained by the appellate court if it has a reasonable basis in law and is supported by substantial evidence in the record considered as a whole. E.R. Southtech, Ltd. v. Arapahoe County Bd. of Equaliz., 972 P.2d 1057 (Colo. App. 1998); Farny v. Bd. of Equaliz., 985 P.2d 106 (Colo. App. 1999); Home Depot USA, Inc. v. Pueblo County Bd. of Comm'rs, 50 P.3d 916 (Colo. App. 2002).

Board of assessment appeals can consider reasonable inferences and circumstances tending to weaken or discredit uncontroverted evidence of a single party. Weingarten v. Bd. of Assessment Appeals, 876 P.2d 118 (Colo. App. 1994).

Board of assessment appeals' property tax classification determination must be sustained if it has a reasonable basis in law and is supported by substantial evidence in the record as a whole. Johnston v. Park County Bd. of Equaliz., 979 P.2d 578 (Colo. App. 1999); Home Depot USA, Inc. v. Pueblo County Bd. of Comm'rs, 50 P.3d 916 (Colo. App. 2002).

Board of assessment appeals' factual determination as to the appropriate valuation of a parcel may not be disturbed on review where it is supported by competent and substantial evidence in the record as a whole. Steamboat Ski & Resort Corp. v. Routt County Bd. of Equaliz., 23 P.3d 1258 (Colo. App. 2001).

In determining whether an administrative agency's decision is arbitrary or capricious, the court must determine whether a reasonable person, considering all of the evidence in the record, would fairly and honestly be compelled to reach a different conclusion. If not, no abuse of discretion has occurred and the agency decision must be upheld. Ramseyer v. Colo. Dept. of Soc. Servs., 895 P.2d 1188 (Colo. App. 1995); WCC v. Umetco Minerals, 919 P.2d 887 (Colo. App. 1996).

District court has no jurisdiction to interfere with officers of the executive branch of government whose duties are imposed by statute, because such action constitutes direct and unjustified judicial interference with a function properly delegated to the executive department. Colo. Dept. of Rev. v. District Court, 172Colo. 144, 470 P.2d 864 (1970).

District courts do not have jurisdiction to interfere with the executive branch of the government in the performance of its statutory duties. Moore v. District Court, 184Colo. 63, 518 P.2d 948 (1974).

A court cannot substitute its judgment for that of an agency as to what is a reasonable penalty and the power to modify is not given to a reviewing court under subsection (7). Petersen v. Racing Comm'n, 677 P.2d 412 (Colo. App. 1983).

The district court cannot usurp the power of the state banking board to determine whether to grant a bank charter. Banking Bd. v. District Court, 177Colo. 77, 492 P.2d 837 (1972).

District court cannot substitute its judgment for that of administrative tribunal when there is substantial evidence in record to support tribunal's decision. Inst. for Research v. Bd. of Assessment Appeals, 748 P.2d 1346 (Colo. App. 1987).

Weighing evidence and resolving conflicts is the task of the administrative agency, not the reviewing court. Bd. of Assessment Appeals v. Arlberg Club, 762 P.2d 146 (Colo. 1988).

Agency decision may be set aside only upon the grounds that it is arbitrary and capricious or it is unsupported by any competent evidence. Bd. of Assessment Appeals v. Arlberg Club, 762 P.2d 146 (Colo. 1988); Denver v. Bd. of Assessment Appeals, 802 P.2d 1109 (Colo. App. 1990).

A reviewing court may not reverse the decision of an agency unless the court finds it to be arbitrary and capricious or contrary to rule or law. Kramer v. Colo. Dept. of Rev., 964 P.2d 629 (Colo. App. 1998).

An agency interpretation that is not only in conformity with the relevant statutory provisions but is reasonably supported by the agency's reasoning and the record is entitled to deference. Dept. of Rev. v. Woodmen of the World, 919 P.2d 806 (Colo. 1996); Kramer v. Colo. Dept. of Rev., 964 P.2d 629 (Colo. App. 1998).

Because the fire and police pension association is not an agency of state government, the standard of review of a decision of the association is not whether there is "substantial evidence" under subsection (7), but rather, whether there is "no competent evidence" under C.R.C.P. 106(a)(4), to support the decision. Pueblo v. Fire & Police Pension Ass'n, 827 P.2d 597 (Colo. App. 1992); Wine & Spirits Wholesalers v. Colo. Dept. of Rev., 919 P.2d 894 (Colo. App. 1996).

Where evidence is conflicting, the hearing officer's finding is binding on appeal, and a reviewing court may not substitute its judgment for that of the fact finder. Marek v. Dept. of Rev., 709 P.2d 978 (Colo. App. 1985); Glasmann v. Dept. of Rev., 719 P.2d 1096 (Colo. App. 1986).

Record as a whole substantially supported the racing commission's order, and, therefore, the agency's decision must be upheld. Partridge v. State, 895 P.2d 1183 (Colo. App. 1995).

Court properly exercised its judicial review function where record of rule-making proceeding supports the adoption of the rule. City of Aurora v. Pub. Utils. Comm'n, 785 P.2d 1280 (Colo. 1990).

Administrative decision set aside where unsupported by competent evidence. In order for a court to set aside a decision of an administrative body on the ground that it is arbitrary and capricious, the court must find that the decision is unsupported by any competent evidence. Bd. of County Comm'rs v. Simmons, 177Colo. 347, 494 P.2d 85 (1972); Dolan v. Rust, 195Colo. 173, 576 P.2d 560 (1978); Noe v. Dolan, 197Colo. 32, 589 P.2d 483 (1979); Bd. of County Comm'rs v. Bd. of Assmt. Appeals, 628 P.2d 156 (Colo. App. 1981); Mertsching v. Webb, 757 P.2d 1102 (Colo. App. 1988).

A trial court may not set aside the decision of an administrative body as arbitrary and capricious unless the decision is unsupported by competent evidence. Guildner Way, Inc. v. Bd. of Adjustment, 35 Colo. App. 70, 529 P.2d 332 (1974).

Hearing officer wrongly denied licensee access to documents considered by the agency. The state administrative procedure act requires that the record include copies of all exhibits and other papers. Gilbert v. Julian, 230 P.3d 1218 (Colo. App. 2009).

Abuse of discretion by board of assessment appeals exists where board failed to consider evidence of value of similar properties in other counties in Colorado and other states for purposes of property tax assessment. Platinum Props. Corp. v. Bd. of Assess. App., 738 P.2d 34 (Colo. App. 1987); Sonnenberg & Sons v. Bd. of Assess. App., 768 P.2d 748 (Colo. App. 1988).

Because specialty board certification exceeds the requirements for licensure of a physician, the board of medical examiners acted outside of its statutory authority in imposing such a requirement as a condition of license reinstatement. Lopez-Samoyoa v. Bd. of Med. Exam., 868 P.2d 1110 (Colo. App. 1993).

Courts cannot interfere with zoning decisions unless record shows clear abuse of discretion. Bd. of County Comm'rs v. Simmons, 177Colo. 347, 494 P.2d 85 (1972).

Abuse of discretion not shown where factual question debatable. Where the question of whether the character of a neighborhood has changed sufficiently to justify a change in zoning is fairly debatable and the zoning decision of the board of county commissioners is supported by competent evidence, the record does not show a clear abuse of discretion. Bd. of County Comm'rs v. Simmons, 177Colo. 347, 494 P.2d 85 (1972).

Agency action to be supported by substantial evidence when record considered as whole. This section requires agency action to be supportable by substantial evidence when the record is considered as a whole; if there is only some evidence in some particulars, it is insufficient to justify an affirmance of discharge of a civil service employee. Lassner v. Civil Service Comm'n, 177Colo. 257, 493 P.2d 1087 (1972).

The hearing panel's findings of basic facts must be rejected if they are unsupported by substantial evidence when the record is considered as a whole or if they are not supported by competent evidence in the record. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

Facts were sufficient to support, by a preponderance of the evidence, a finding of child abuse; therefore, record on the whole supports the findings of fact and the district court judgment and final agency order shall not be disturbed on review. M.G. v. Colo. Dept. of Human Servs., 12 P.3d 815 (Colo. App. 2000).

The imposition of sanctions is a discretionary function that cannot be overturned unless it is an abuse of that discretion. As long as the record as a whole provides sufficient evidence that the penalty is not manifestly excessive in relation to the misconduct and the public need, the penalty will be upheld. The "reasonable basis" standard does not apply to the review of an agency's imposition of sanctions. Colo. Real Estate Comm'n v. Hanegan, 947 P.2d 933 (Colo. 1997); Ainsworth v. Colo. Ltd. Gaming Control Comm'n, 45 P.3d 768 (Colo. App. 2001).

Effect of substantial evidence supporting agency action. Where appellate review of the record shows "substantial evidence" to support the decision of an administrative hearing officer, the existence of such evidence renders an appellant's claim of an unduly restrictive standard of review by the district court devoid of merit. DeScala v. Motor Vehicle Div., 667 P.2d 1360 (Colo. 1983).

Doctrines of res judicata and collateral estoppel applicable. While the doctrines of res judicata and collateral estoppel were developed in the context of judicial proceedings, it is now well accepted that in a proper case they may be applied to administrative proceedings as well. Umberfield v. Sch. Dist. No. 11, 185Colo. 165, 522 P.2d 730 (1974).

Where a teacher has a full adversary hearing before a teacher tenure panel, which has the power to determine all his claims of religious discrimination, the doctrine of res judicata operates as a bar to the relitigation of issues before the civil rights commission which the teacher raises or could raise in the hearing before that panel and on judicial review. Umberfield v. Sch. Dist. No. 11, 185Colo. 165, 522 P.2d 730 (1974).

Where an agency's interpretation of a regulation clearly contradicts that agency's consistent practice, the agency's practices and not its interpretation should prevail. Geriatrics, Inc. v. Dept. of Soc. Servs., 712 P.2d 1035 (Colo. App. 1985).

Determination held to be supported by substantial evidence. Geriatrics, Inc. v. Dept. of Health, 650 P.2d 1288 (Colo. App. 1982), aff'd in part and rev'd in part on other grounds, 699 P.2d 952 (Colo. 1985); Pub. Emp. Ret. Ass'n v. Stermole, 874 P.2d 444 (Colo. App. 1993).

School board found to have abused its discretion in dismissing teacher. Hudson v. Bd. of Educ., 655 P.2d 853 (Colo. App. 1982).

Whether PUC "regularly pursued its authority" pursuant to subsection (7) depends on several factors including whether: The decision is based on evidence introduced at evidence gathering stage of process; the PUC order is supported by findings of fact; the PUC supplied legislative standards guiding its decision-making function; and the PUC acted within authority conferred on it. Home Builders Ass'n v. Pub. Utils. Comm'n, 720 P.2d 552 (Colo. 1986); Colo. Office of Consumer Counsel v. Mtn. States Tel. & Tel. Co., 816 P.2d 278 (Colo. 1991).

State pharmacy board (Board) did not exceed its statutory authority pursuant to subsection (7) in promulgating rule prohibiting pharmacists from dispensing prescription drugs resulting from internet-based questionnaires, internet-based consultation, or telephonic consultation without a valid preexisting patient-practitioner relationship. Court rejects appellants' claims that a determination of whether a valid preexisting patient-practitioner relationship (1) necessarily involves knowledge of the Medical Practice Act and the rules promulgated by the Colorado state board of medical examiners (BME), (2) is beyond the expertise of individual pharmacists and the Board, and (3) improperly injects the Board into areas that are properly regulated by the BME. Brighton Pharmacy, Inc. v. Colo. State Pharmacy Bd., 160 P.3d 412 (Colo. App. 2007).

Department of health care policy and financing's rules denying spouse of institutionalized man a community spouse monthly income allowance are contrary to federal law and, therefore, may not be applied. Koehler v. Colo. Dept. of Health Care Policy & Fin., 252 P.3d 1174 (Colo. App. 2010).

An agency's failure to comply with its own regulations constitutes arbitrary and capricious conduct; however, any impropriety in the administrative process will not require reversal unless a plaintiff can demonstrate prejudice. Rags Over Ark. River v. Parks & Wildlife Bd.,2015 COA 11M, 360 P.3d 186.

District court erred to the extent that it reweighed evidence and made credibility determinations based on information outside an administrative record. The administrative record did not contain any evidence regarding prior condemnation cases involving a municipal water delivery project at issue. Moreover, the state's water quality control commission (commission) and not the district court is tasked with determining the weight and credibility of the evidence. Thus, it was for the commission to determine the weight and impact of any proposed future mitigation efforts agreed to by participants in the project. Chostner v. Colo. Water Quality Control Comm'n,2013 COA 111, 327 P.3d 290.

There is substantial evidence in the record to support the commission's conclusion that a conditional certification of a municipal water delivery project under section 401 of the federal Clean Water Act by the water quality control division (division) meets the federal standard of providing reasonable assurance that the project will be conducted in a manner that will not violate applicable water quality standards. Chostner v. Colo. Water Quality Control Comm'n,2013 COA 111, 327 P.3d 290.

District court erred in determining that the methodology selected and applied by the division in conditionally certifying a municipal water delivery project under section 401 of the federal Clean Water Act, and affirmed by the commission, was arbitrary and capricious. Because commission is the agency tasked with administrative review of section 401 certifications, and given the technical nature of the review, appellate court defers to commission's interpretation of its regulations. Commission's interpretative conclusions are neither unreasonable nor plainly erroneous or inconsistent with the 401 certification or antidegradation regulations. Although the district court disagreed with conclusions drawn from evidence presented and appeared not to credit testimony of division employee responsible for certification review, it is not the prerogative of the reviewing court to weigh the evidence. Under subsection (7), it is for the commission to resolve any conflicts in the testimony and to weigh the evidence presented. It is also not the role of the reviewing court to choose among alternative methodologies. That is the function of the commission. Rather, the role of the reviewing court is limited to determining whether the commission's decision is consistent with its regulations and supported by the record. Chostner v. Colo. Water Quality Control Comm'n,2013 COA 111, 327 P.3d 290.

Administrative record supports findings of commission. There is substantial evidence in the administrative record to support commission's conclusion that the division complied with the public notice requirements specified in the commission's regulations and conducted antidegredation reviews. Consequently, the district court erred in finding that the division failed to conduct antidegradation reviews of the reviewable stream segments. The administrative record demonstrates that the division appropriately interpreted and applied the regulations and guidance governing the methodologies for antidegredation analysis. Commission correctly concluded that the division was not required to develop total maximum daily loads (TDMLs) for certain impaired stream segments before issuing its 401 certification. Accordingly, district court erred in concluding that a TDML was required and that division was required to assess potential impacts of future population growth as part of its section 401 review process. Thus, the commission's finding on these issues were neither arbitrary and capricious nor contrary to law. Chostner v. Colo. Water Quality Control Comm'n,2013 COA 111, 327 P.3d 290.