Summaries of Published Opinions, 0919 COBJ, Vol. 48, No. 8 Pg. 90

Position:Vol. 48, 8 [Page 90]

48 Colo.Law. 90

Summaries of Published Opinions

Vol. 48, No. 8 [Page 90]

Colorado Lawyer

September, 2019

August, 2019


June 6, 2019

2019 COA 86. No. 18CA1147. Weld Air & Water v. Colorado Oil and Gas Conservation Commission. Administrative Law—Standing—Injury-in-Fact—Oil and Gas Conservation Act—Colorado Administrative Procedure Act— Setback Rules.

Extraction Oil and Gas, Inc. (Extraction) filed two Form 2A applications with the Colorado Oil and Gas Conservation Commission (the Commission) seeking approval to conduct oil and gas operations at an existing drilling site. The proposed site was approximately 1,360 feet from a middle school. The Commission accepted public comments on the applications and subsequently approved the applications. Weld Air & Water, Sierra Club, NAACP Colorado State Conference, and Wall of Women (petitioners) are organizations that have aesthetic, recreational, health, and environmental interests in the proposed development location and sued in district court. The district court affirmed the Commission's decision.

On appeal, the Commission asserted that the district court erred when it held that petitioners had standing to seek judicial review of the Commission's authorization of Extraction's Form 2A permit applications. Petitioners offered declarations from members on how the expected air and noise pollution from Extraction's proposed development would negatively impact their interests. Petitioners thus established injuries-in-fact to legally protected interests under the Colorado Administrative Procedure Act (the APA) and the Oil and Gas Conservation Act (the Act), which authorizes judicial review of the Commission's permit approvals via the APA. The district court did not err in holding that petitioners had standing to seek judicial review of the Commission's permit approvals.

Petitioners argued that the district court erred when it found that the Commission did not act arbitrarily and capriciously by failing to consider public comments. They contended that the Commission was obligated to respond to substantive public comments because its rules require it to make a record of its decision-making process to show that it considered public comments. The record shows that the Commission considered and responded to public concerns regarding (1) the students' health, (2) Extraction's emergency response plan, and (3) alternative siting. The district court did not err in concluding that the Commission did not act arbitrarily or capriciously in granting the challenged permits.

Petitioners also argued that the district court erred when it found that the Commission complied with its own setback rules because it did not require Extraction to conduct an alternative site analysis before granting the permits. Dep't of Nat. Res. Rule 604.c.(2)(E)(i) does not require an alternative site analysis before the Commission can grant a Form 2A permit. Here, the Commission complied with its own regulations in authorizing Extraction's permits and did not act arbitrarily or capriciously.

The judgment was affirmed.

June 13, 2019

2019 COA 87. No. 17C A2416. In re Marriage of January.

Dissolution of Marriage—Contempt— Remedial Sanctions—Attorney Fees—Final Appealable Order.

The permanent orders in the parties' dissolution of marriage required them to share their daughter's tutoring expenses in proportion to their incomes. Father subsequently refused to pay his share of the daughter's tutoring costs. Mother moved for remedial sanctions in the form of tutoring expenses and attorney fees. The magistrate found father in contempt and imposed sanctions consisting of the tutoring expenses and mother's attorney fees incurred in connection with the contempt proceeding. Father objected to the attorney fees award and requested a hearing. The magistrate has not yet set a hearing or ruled on father's objection. Father also petitioned for district court review of the contempt order. The district court adopted the magistrate's order awarding the tutoring expenses to mother.

Father appealed the district court's ruling. The parties were ordered to show cause why the appeal should not be dismissed, without prejudice, for lack of a final, appealable judgment. The Court of Appeals determined that CRCP 107(d) (2) allows a district court to award reasonable attorney fees as a remedial sanction. Thus, a contempt order is not final until the attorney fees portion of the remedial sanction has been resolved, and father appealed too soon.

The appeal was dismissed without prejudice.

2019 COA 88. No. 18CA0748. Ryser v. Shelter Mutual Insurance Co. Personal Injury—Insurance—Workers' Compensation—Co-Employee Immunity Rule—Uninsured/Underinsured Motorist—Coverage and Liability.

Babion owned a car. With Babion's permission, Forster was driving the car with Ryser as a passenger. A one-car accident occurred and Ryser suffered serious injuries. When the accident occurred, Babion, Forster, and Ryser were Walmart employees acting in the course and scope of their employment. According to Ryser, Forster's negligence caused his injuries.

Ryser received workers' compensation benefits and obtained uninsured/underinsured motorist (UM/UIM) benefits under his own auto policy. Ryser also submitted a claim for UM/ UIM benefits from Babion's policy with Shelter Mutual Insurance Co. (Shelter). Shelter rejected the claim, and Ryser sued. Shelter moved for summary judgment. The trial court ruled for Shelter based on co-employee immunity.

On appeal, Ryser contended that the trial court erred in finding that he was not entitled to UM /UIM benefits under Babion's policy. The exclusivity provision of the Workers' Compensation Act of Colorado, and the related co-employee immunity rule, bar a person who was injured in the course and scope of employment by a co-employee's negligence in driving a car from receiving UM/UIM benefits under an insurance policy maintained by another co-employee who owned the car. Therefore, Ryser was not legally entitled to recover damages from Forster and, as a result, cannot recover UM/UIM benefits from Babion. The trial court properly granted summary judgment in favor of Shelter on Ryser's claim for UM/UIM benefits.

The judgment was affirmed.

June 20, 2019

2019 COA 89. No. 16CA1289. People In re the Interest of TB. Criminal Law—Juvenile Law—Colorado Sex Offender Registration Act—Repeat Offenders—Cruel and Unusual Punishment—Constitutional Law—Eighth Amendment.

In 2001, when T.B. was 12...

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