2025 CO 27
American Heritage Railways, Inc. and The Durango & Silverton Narrow Gauge Railroad Company, Plaintiffs-Appellants
v.
Colorado Public Utilities Commission, Defendant-Appellee
and La Plata County, Colorado. Intervenor-Appellee
No. 24SA184
Supreme Court of Colorado, En Banc
May 27, 2025
Appeal
from the District Court District Court, City and County of
Denver, Case No. 22CV32480 Honorable Christopher J. Baumann,
Judge
Attorneys for Plaintiffs-Appellants: Jones & Keller, P.C.
Edward T. Lyons, Jr. Stuart N. Bennett Nicole A. Westbrook
Denver, Colorado
2
Attorneys
for Defendant-Appellee: Philip J. Weiser, Attorney General
Paul C. Gomez, First Assistant Attorney General Ruth M.
Harper, Senior Assistant Attorney General Alex J. Acerra,
Assistant Attorney General Denver, Colorado
Attorneys for Intervenor-Appellee: Kaplan Kirsch LLP Sarah M.
Keane Nathaniel H. Hunt Christian L. Alexander Denver,
Colorado
JUSTICE GABRIEL delivered the Opinion of the Court, in which
CHIEF JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE
HOOD, JUSTICE HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER
joined.
3
OPINION
GABRIEL, JUSTICE
¶1
Pursuant to section 40-6-115(5), C.R.S. (2024), American
Heritage Railways, Inc. ("AHR") and its subsidiary,
The Durango & Silverton Narrow Gauge Railroad Company
("DSNGR" and, collectively with AHR, the
"Railroad"), appeal the district court's
decision upholding the Colorado Public Utilities
Commission's (the "PUC's") order granting
relief to La Plata County in this land use dispute between
the Railroad and the County. The Railroad contends that (1)
the PUC lacked jurisdiction to interpret the applicable land
use provision, section 30-28-127, C.R.S. (2024); (2) the
County lacked standing to petition the PUC for the relief it
sought; (3) the PUC deprived the Railroad of its due process
rights in several respects; and (4)the PUC erred in its
application of section 30-28-127.[1]
4
¶2
We now conclude that (1) the PUC had jurisdiction to
interpret section 30-28-127, (2) the County had standing to
petition the PUC, (3) the PUC did not deprive the Railroad of
its due process rights, and (4) the PUC's application of
section 30-28-127 was just and reasonable and in accordance
with the evidence.
¶3
Accordingly, we affirm the district court's judgment
upholding the PUC's decision below.
I.
Facts and Procedural History
¶4
The Railroad operates the narrow-gauge railroad line from
Durango to Silverton. The PUC has authorized the Railroad to
do so as a common carrier and to exercise all rights, powers,
and privileges incident thereto under Colorado's public
utilities law.
¶5
In 2019, the Railroad reinstituted a previously available
shorter route running from Rockwood to Cascade Wye. This
shorter route gained significant popularity during the
COVID-19 pandemic when operating restrictions limited the
Railroad's ability to operate the full Durango to
Silverton route.
¶6
To accommodate the increased popularity of the shorter route,
the Railroad made a number of changes to its Rockwood
Station, which is in La Plata County.
5
As pertinent here, the Railroad regraded and enlarged the
existing parking lot at the station, removed a fence on its
right of way, and added portable toilets and tents to
accommodate passengers either waiting to board the train or
exiting from it.
¶7
Thereafter, the County sent AHR and DSNGR notices alleging
that these changes violated the County's land use code.
The County thus demanded that the Railroad correct the
violations or submit either an application for a certificate
of nonconforming status or an application for a sketch plan
as the first step in obtaining a permit for the proposed
operations at the expanded station.
¶8
The Railroad then sued the County in La Plata County District
Court. As pertinent here, the Railroad's complaint sought
(1) a declaratory judgment confirming that the Railroad was
not subject to the County's land use code because the
County lacked jurisdiction to apply its code to the
Railroad's existing land and structures and (2) an
injunction prohibiting the County from enforcing its notices
of violations and from seeking to regulate or interfere with
the Railroad's operations.
¶9
While this district court case was pending, the County filed
with the PUC a petition for a declaratory ruling. The
petition sought an order determining, as pertinent here, that
(1) the Railroad's new route constituted a new facility,
plant, or system, or the extension of its existing facility,
plant, or system, thus requiring
6
a new certificate of public convenience and necessity under
section 40-5-101, C.R.S. (2024); and (2) the physical changes
in the use of the Rockwood Station constituted extensions,
betterments, or additions under section 30-28-127, requiring
compliance with the County's land use code.
¶10
Section 30-28-127 provides:
None of the provisions of this part 1 [authorizing counties
to adopt land use plans] shall apply to any existing
building, structure, or plant or other equipment owned or
used by any public utility. After the adoption of a plan, all
extensions, betterments, or additions to buildings,
structures, or plant or other equipment of any public utility
shall only be made in conformity with such plan, unless,
after public hearing first had, the public utilities
commission orders that such extensions, betterments, or
additions to buildings, structures, or plant or other
equipment are reasonable and that such extensions,
betterments, or additions may be made even though they
conflict with the adopted plan.
¶11
The County's petition alleged that the clearing of land
and construction of new parking facilities that expanded the
existing parking area's footprint, the appropriation of a
neighboring driveway as part of the parking lot's
expansion, and the installation of portable toilets
constituted extensions, improvements, betterments, or
additions to existing facilities that, pursuant to section
30-28-127, required conformance with the County's land
use code. Furthermore, under the heading "Relief
Requested," the petition alleged, "That AHR and
DSNGR's physical changes in use of the Rockwood Station
and Subject Properties described
7
herein constitute 'extensions',
'betterments', and/or 'additions' subject to
§ 30-28-127, C.R.S. requiring compliance with the
County's existing Code."
¶12
The PUC accepted the petition and established a thirty-day
notice and intervention period. The Railroad then filed a
notice of intervention as of right in the proceedings. This
notice stated that the Railroad contested and opposed the
petition and generally set forth the bases on which it did
so. The notice, however, did not request a hearing on the
matter.
¶13
Shortly after the PUC accepted the County's petition, the
County filed a motion in the La Plata County District Court
to stay the district court proceedings pending the resolution
of its PUC petition. The court granted this motion, finding
that "it is warranted to stay the case until the PUC
decides the scope of its own jurisdiction."
¶14
The PUC subsequently referred the County's petition to an
administrative law judge ("ALJ"), who then issued
an order requiring the parties to file briefs regarding the
petition's merits. This order reiterated the
petition's requested relief, noting, among other things,
"[T]he County requests the Commission declare that
DSNGR's physical changes to the Rockwood Station
constitute extensions, betterments, or additions subject to
§ 30-28-127, C.R.S., requiring compliance with the
County's existing land use code." The order further
directed that the parties' briefs address (1) the
PUC's jurisdiction over the pending dispute; (2) whether
the
8
new route requires a new certificate of public convenience
and necessity from the PUC; (3) if so, the remedies that the
PUC has the authority to order; and (4) "any other
issues the parties believe the Commission should address in
this proceeding." Finally, the order directed the
Railroad to file "a brief in response to the
Petition" and the County thereafter to file a
"reply brief," setting deadlines for each.
¶15
After receiving briefs, affidavits, and exhibits from the
parties and comments from members of the public, the ALJ
issued a Recommended Decision. In this Recommended Decision,
the ALJ first concluded that the County had standing to file
its petition for a declaratory order because an actual
controversy existed between the County and the Railroad.
Next, the ALJ interpreted section 30-28-127 and concluded
that that provision authorized the County to regulate the
Railroad's land use activities at the Rockwood Station
and to enforce the County's land use code.
¶16
The ALJ then concluded that the PUC had jurisdiction to
determine whether the changes at the Rockwood Station
constituted extensions, betterments, or additions under
section 30-28-127. Accordingly, the ALJ proceeded to find
that (1) the Railroad had "made physical changes to
expand the driveway, significantly expanded the size and use
of the parking lot, and installed portable toilets and tents
at the Rockwood Station"; and (2) the Railroad's
"physical changes to the
9
structures, plant, and other equipment at the Rockwood
Station constitute 'extensions, betterments, or
additions' within the meaning of those terms in §
30-28-127, C.R.S."
¶17
Finally, the ALJ considered whether the changes at issue,
which constituted extensions, betterments, or additions to
structures or other equipment within the meaning of section
30-28-127, also constituted "the construction of a new
facility, plant, or system or the extension of . . . [a]
facility, plant, or system" of the Railroad under
section 40-5-101(1)(a), such that the Railroad needed to
apply for a new certificate of public convenience and
necessity under the latter provision. (Omission and
alteration in original.) The ALJ concluded that they were not
and that the Railroad was not required to apply for such a
new certificate.
¶18
The Railroad filed exceptions to the ALJ's Recommended
Decision with the PUC, arguing, in pertinent part, that the
ALJ had (1) incorrectly concluded that the PUC had
jurisdiction to decide whether an action constitutes an
"extension, betterment, or addition" under section
30-28-127; (2) incorrectly concluded that the County had
standing to seek its requested declaratory ruling; (3)
erroneously concluded that the physical changes that the
Railroad had made at the Rockwood Station constituted
extensions, betterments, or additions; (4) deprived the
Railroad of procedural due process by deciding that the
changes constituted extensions, betterments, or additions
without giving the Railroad adequate notice and an
10
opportunity to be heard regarding that issue; and (5)
erroneously failed to hold an evidentiary hearing on the
petition.
¶19
The PUC subsequently conducted live deliberations on this
matter during its Commissioners' Weekly Meeting and
thereafter denied the Railroad's exceptions, upholding
the Recommended Decision in its entirety.
¶20
In so ruling, the PUC first determined that the County had
standing to seek from the PUC the resolution of the
parties' dispute and that the PUC had jurisdiction to
decide whether the Railroad's physical changes to the
Rockwood Station constituted extensions, betterments, or
additions under section 30-28-127. The PUC further concluded,
based on the plain language of section 30-28-127 and the
undisputed facts in the pleadings, that the ALJ had
reasonably found that the Railroad's changes to the
Rockwood Station constituted extensions, betterments, or
additions under section 30-28-127.
¶21
The PUC also rejected the Railroad's argument that the
ALJ had erred by declining to hold an evidentiary hearing.
The PUC observed that no statute or rule required such a
hearing, the Railroad had not requested one, and the Railroad
had had a fair opportunity to advance its positions through
its written briefing.
¶22
Finally, the PUC perceived no merit to the Railroad's
contention that the ALJ had decided that the changes to the
Rockwood Station constituted extensions, betterments, or
additions without providing the Railroad with adequate notice
11
and an opportunity to respond. The PUC noted that the
County's petition clearly requested findings on this
question and the ALJ's briefing order had broadly
directed briefing on the merits and on any other issues that
the parties believed should be addressed.
¶23
The Railroad then sought judicial review of the PUC's
decision in the district court, and the district court
affirmed. Am. Heritage Rys., Inc. v. Colo. Pub. Utils.
Comm'n, No. 22CV32480, at 13 (Dist. Ct., City &
Cnty. of Denver, May 6, 2024). The district court noted the
broad authority granted to the PUC and concluded that the PUC
had regularly pursued that authority in determining that it
had the power to interpret and apply section 30-28-127.
Id. at 6-7. The court next concluded that the County
had standing because it had a legally protected interest in
regulating land use and development through its land use
code, an interest that was injured due to the Railroad's
refusal to comply with the County's enforcement efforts.
Id. at 8. The court further determined that no
hearing was required and that the record supported the
PUC's finding that the Railroad had notice that the
question of whether the changes constituted extensions,
betterments, or additions was before the ALJ even without an
explicit request for briefing on the question. Id.
at 10-11. Finally, the court concluded that the PUC had
regularly pursued its authority in determining that the
changes made by the Railroad to the Rockwood
12
Station constituted extensions, betterments, or additions for
purposes of section 30-28-127. Id. at 13.
¶24
The Railroad now appeals to this court.
II.
Analysis
¶25
We begin by setting forth the applicable standard of review.
We then address each of the Railroad's contentions on
appeal and determine that in each instance, the PUC regularly
pursued its authority in reaching its conclusions.
A.
Standard of Review
¶26
Because the PUC is an expert agency with fact-finding and
policymaking authority, informed by evidence and arguments
presented on the record, judicial review of PUC decisions is
relatively narrow. CF&I Steel, L.P. v. Pub. Utils.
Comm'n, 949 P.2d 577, 584 (Colo. 1997). Courts
review PUC decisions solely to determine whether (1) the PUC
"has regularly pursued its authority," including a
determination as to whether the PUC decision at issue
violates any rights of the petitioner under the United States
or Colorado Constitutions; (2) the PUC's decision is
"just and reasonable"; and (3) the PUC's
"conclusions are in accordance with the evidence."
§ 40-6-115(3).
¶27
The PUC has regularly pursued its authority when its factual
findings and its conclusions were based on adequate evidence
and it reached its decision by applying the appropriate
constitutional and legislative standards.
13
Danks v. Colo. Pub. Utils. Comm'n, 2022 CO 26,
¶ 42, 512 P.3d 692, 699. We give deference to the
PUC's interpretation of applicable statutes and
regulations, but its interpretations of law do not control
our legal conclusions. Pub. Serv. Co. of Colo. v.
Trigen-Nations Energy Co., 982 P.2d 316, 322
(Colo. 1999).
B.
The PUC Had Jurisdiction
¶28
The Colorado Constitution vests the PUC with broad authority
to regulate public utilities. See Colo. Const. art.
XXV. In addition, section 40-3-102, C.R.S. (2024), provides,
in pertinent part:
The power and authority is hereby vested in the public
utilities commission of the state of Colorado . . . to
generally supervise and regulate every public utility in this
state[] and to do all things, whether specifically designated
in articles 1 to 7 of this title or in addition thereto,
which are necessary or convenient in the exercise of such
power . . . .
¶29
Our case law has consistently confirmed this broad authority.
We have noted that it is "well-established that agencies
possess implied and incidental powers filling the interstices
between express powers to effectuate their mandates."
Hawes v. Colo. Div. of Ins., 65 P.3d 1008, 1016
(Colo. 2003). And regarding the PUC in particular, we have
observed that the PUC's "authority under article XXV
is not narrowly confined but extends to incidental powers
which are necessary to enable it to regulate public
utilities." Mountain States Tel. & Tel. Co. v.
Pub. Utils. Comm'n, 763 P.2d 1020, 1025 (Colo.
1988).
14
¶30
Because an agency possesses implied powers that are necessary
to execute its functions, it has the authority to interpret
statutes pertinent to the dispute before it. See Denver
Loc. 2-477, Oil, Chem. & Atomic Workers'
Int'l Union v. Metro Wastewater Reclamation Dist., 7
P.3d 1042, 1045-46 (Colo.App. 1999) (rejecting a contention
that the Colorado Division of Labor lacked jurisdiction to
interpret the Metropolitan Sewage Disposal Districts Act and
concluding that the Division had the authority to interpret
that statute because it was pertinent to the labor dispute
before it); see also Prospect 34, LLC v. Gunnison Cnty.
Bd. of Cnty. Comm'rs, 2015 COA 160, ¶¶
24-26, 363 P.3d 819, 823 (rejecting an argument that the
Board of Assessment Appeals lacked the authority to interpret
statutes in title 32, concerning special districts, and
concluding that the Board must be able to interpret statutes
concerning the legality of taxes).
¶31
Here, section 30-28-127 was pertinent to the dispute before
the PUC because the County had alleged that it could regulate
the changes to the Rockwood Station as extensions,
betterments, or additions to buildings, structures, or plant
or other equipment pursuant to that provision. Thus, as the
agencies in Prospect 34 and Denver Local
2-477 did, the PUC here validly exercised its
necessary authority to interpret a statute pertinent to the
dispute before it in determining whether the changes to the
Rockwood Station constituted extensions, betterments, or
additions under section 30-28-127.
15
¶32
Furthermore, interpreting section 30-28-127 was necessary and
incidental to the PUC's authority to adjudicate the
County's petition. Section 24-4-105(11), C.R.S. (2024),
provides, in pertinent part, "Every agency shall provide
by rule for the entertaining, in its sound discretion, and
prompt disposition of petitions for declaratory orders to
terminate controversies or to remove uncertainties as to the
applicability to the petitioners of any statutory provision
or of any rule or order of the agency." Pursuant to
section 24-4-105(11) and consistent with it, the PUC adopted
Pub. Utils. Comm'n, 4 Colo. Code Regs. 723-1:1304(f)(II)
(2025) ("Rule 1304(f)(II)"), which provides, in
pertinent part, "The Commission may issue a declaratory
order to terminate a controversy or to remove an uncertainty
affecting a petitioner with regard to any tariff, statutory
provision, or Commission rule, regulation, or order."
¶33
Section 24-4-105(11) and Rule 1304(f)(II) thus direct the PUC
to adjudicate petitions for declaratory orders regarding the
applicability to the petitioners of a statutory provision.
And to do so, the agency must have the authority to interpret
that statutory provision. Interpreting section 30-28-127 here
was thus necessary and incidental to the PUC's authority
to adjudicate the County's petition for a declaratory
order.
¶34
We are not persuaded otherwise by the Railroad's contrary
interpretations of section 24-4-105(11) and Rule 1304(f)(II),
which, according to the Railroad,
16
authorize the PUC to interpret only its own statutes, that
is, those found in the public utilities law. In section
24-4-105(11), "of the agency" modifies only
"any rule or order" and does not modify "any
statutory provision" because "or of" separates
the former from the latter. Similarly, in Rule 1304(f)(II),
because "Commission" precedes only "rule,
regulation, or order" and not "statutory
provision," the word "Commission" modifies
only the former and not the latter. Thus, although the PUC
must limit its adjudication of petitions regarding the
applicability of rules, regulations, and orders to its own
rules, regulations, and orders, its authority to adjudicate
petitions regarding the applicability of statutes contains no
such limitation. The sole limitation is whether interpreting
the pertinent statute or statutes is necessary and incidental
to the PUC's carrying out its authority. Mountain
States Tel. & Tel. Co., 763 P.2d at 1025; Denver
Loc. 2-477, 7 P.3d at 1045-46; Prospect
34, ¶¶ 24-26, 363 P.3d at 823.
¶35
Finally, we note that section 30-28-127 itself raises the
issue of the PUC's jurisdiction. The PUC has the
authority to determine that a public utility's
extensions, betterments, or additions to buildings,
structures, or plant or other equipment are reasonable and
may be made even though they conflict with a county's
land use plan. § 30-28-127. For the PUC to make this
determination, however, changes must constitute extensions,
betterments, or additions to buildings, structures, or plant
or other equipment. The PUC, like any tribunal,
17
"has jurisdiction to determine the facts on which its
own jurisdiction depends and to make a jurisdictional ruling
based on the facts." Keystone, a Div. of Ralston
Purina Co. v. Flynn, 769 P.2d 484, 488 n.6 (Colo. 1989).
It would make little sense to grant the PUC the authority to
make the reasonableness determination provided for in section
30-28-127 without also allowing it to determine whether, on
the facts of a particular case, it may exercise that
authority.
¶36
We likewise are unpersuaded by the Railroad's other
jurisdictional arguments, which we address briefly in turn.
¶37
First, the Railroad argues that the PUC usurped judicial
authority by interpreting section 30-28-127. The Railroad
contends that the PUC's authority is legislative and that
judicial power is vested exclusively in the courts. In
support of this contention, the Railroad primarily points to
People v. Swena, 296 P. 271, 272 (Colo. 1931), in
which we concluded that the PUC lacked the power to punish
for contempt because that power is a judicial power within
the meaning of our constitution. We noted there, however,
that the PUC performs a "quasi judicial function"
involving hearing evidence, ascertaining facts, and
exercising judgment and discretion. Id. Similarly,
we have described agency adjudicatory proceedings as those
that "affect a specific party and resolve particular
issues of disputed fact by applying previously determined
rules or policies to the circumstances of the case."
Colo. Off. of Consumer Couns. v. Mountain States Tel.
& Tel. Co., 816 P.2d 278, 284 (Colo. 1991).
18
Thus, although the PUC lacks some of the powers exercised by
courts, such as the authority to punish for contempt, it
exercises quasi-judicial power to do precisely what it did
here, namely, to ascertain facts and apply existing law to
those facts.
¶38
Second, the Railroad contends that the PUC violated the
"priority of jurisdiction" rule. That rule provides
that when dual actions involving the same subject matter and
substantially the same parties are instituted, the action
filed first has "priority of jurisdiction" and the
second action must be stayed pending the resolution of the
first action. Wiltgen v. Berg, 435 P.2d 378, 381
(Colo. 1967). Here, however, the La Plata County District
Court, in which the Railroad filed the first action, stayed
its own proceedings after the County filed the second action
before the PUC, so that the PUC could determine its own
jurisdiction. We discern nothing that precluded the second
tribunal, here the PUC, from proceeding to adjudication when
the first tribunal determined that staying its own
proceedings was warranted and appropriate, as the district
court did here.
¶39
For these reasons, we conclude that the PUC had jurisdiction
to determine whether the changes to the Rockwood Station
constituted "extensions, betterments, or additions to
buildings, structures, or plant or other equipment"
under section 30-28-127.
19
C.
The County Had Standing
¶40
A declaratory judgment action must be premised on an actual
controversy. Farmers Ins. Exch. v. Dist. Ct., 862
P.2d 944, 947 (Colo. 1993). To establish standing in a
declaratory judgment action, a plaintiff must show that it
suffered an injury-in-fact to a legally protected or
cognizable interest. Id. The injury may be either
tangible (e.g., physical or economic harm) or intangible
(e.g., the deprivation of a legally created right).
Defend Colo. v. Polis, 2021 COA 8, ¶ 23, 482
P.3d 531, 537.
¶41
The same standard applies in an action before an
administrative agency. See Utah Motel Assocs. v. Denver
Cnty. Bd. of Comm'rs, 844 P.2d 1290, 1294-95
(Colo.App. 1992) (concluding that a taxpayer demonstrated
injury to a legally protected right and therefore had
standing in an action before the Board of Assessment
Appeals).
¶42
Because the county planning statutory scheme authorizes
counties to make and enforce land development and zoning
regulations, a county has a legally protected interest in
enforcing its land use code. See Douglas Cnty. Bd. of
Comm'rs v. Pub. Utils Comm'n, 829 P.2d 1303,
1309 (Colo. 1992). Thus, like the county in Douglas
County, the County here had a legally protected interest
in making and enforcing its land use code. Furthermore,
because the County alleged that the Railroad had not complied
with any of its enforcement efforts, it alleged an
injury-in-fact in the form of a deprivation of its legally
created right to enforce its
20
code. See Defend Colo., ¶ 23, 482 P.3d at 537.
The County therefore established standing here.
¶43
Again, we are unconvinced by the Railroad's arguments to
the contrary.
¶44
The Railroad contends that the County lacked standing to file
its petition for a declaratory order because section
24-4-105(11) authorizes the PUC to adjudicate petitions
"to terminate controversies or to remove uncertainties
as to the applicability to the petitioners of any
statutory provision," yet the County's petition
concerned the applicability of section 30-28-127 to the
Railroad, not the County. (Emphasis added.) Similarly, the
Railroad argues that Rule 1304(f)(II) authorizes the PUC to
"issue a declaratory order to terminate a controversy or
to remove an uncertainty affecting a petitioner with
regard to any . . . statutory provision," yet, in the
Railroad's view, the petition concerned the effect of
section 30-28-127 on the Railroad, not the petitioning
County. (Emphasis added.) We disagree because, in our view,
the County's petition complied with both section
24-4-105(11) and Rule 1304(f)(II).
¶45
As to the statute, a controversy existed regarding the
applicability of section 30-28-127 to the County (in addition
to the Railroad) because the County and the Railroad
disagreed about whether the County could enforce its land use
code with respect to the changes to the Rockwood Station. The
petition thus satisfied section 24-4-105(11). Similarly, this
controversy affected the County as required by
21
Rule 1304(f)(II) because it concerned whether the County
could enforce its land use code with respect to the changes
to the Rockwood Station.
¶46
The Railroad further argues that Defend Colorado,
¶ 33, 482 P.3d at 540, compels the conclusion that the
County lacked standing. In that case, a division of the court
of appeals concluded that a petitioner lacked standing
because the agency could not grant the relief sought and
therefore the petitioner suffered no injury to a legally
protected interest. Id. Here, however, we have
concluded that the PUC had jurisdiction to grant the relief
sought by the County. Thus, Defend Colorado
is inapposite.
¶47
Accordingly, we conclude that the County had standing to file
its petition for a declaratory order before the PUC.
D.
The PUC Did Not
Violate the
Railroad's Due
Process Rights
¶48
The Railroad next contends that the PUC violated its due
process rights in several respects. Due process requires
adequate notice and an opportunity to be heard.
Carestream Health, Inc. v. Colo. Pub. Utils.
Comm'n, 2017 CO 75, ¶ 24, 396 P.3d 669, 673. A
presumption of regularity traditionally attaches to
administrative acts such that, in civil proceedings, the
adverse party has the burden of producing evidence sufficient
to rebut that presumption. People v. Gallegos, 692
P.2d 1074, 1078 (Colo. 1984). We address each of the
Railroad's contentions in turn and conclude that the PUC
did not violate the Railroad's due process rights.
22
1.
Notice
¶49
The Railroad argues that the ALJ's briefing order did not
adequately notify it that the ALJ would consider the issue of
whether the changes to the Rockwood Station constituted
extensions, betterments, or additions to buildings,
structures, or plant or other equipment. We are unpersuaded.
¶50
The County's petition alleged that certain changes to the
Rockwood Station constituted extensions, improvements,
betterments, or additions to existing facilities that
required conformance with the County's land use code
under section 30-28-127. Furthermore, under the heading
"Relief Requested," the petition alleged,
"That AHR and DSNGR's physical changes in use of the
Rockwood Station and Subject Properties described herein
constitute 'extensions', 'betterments',
and/or 'additions' subject to § 30-28-127,
C.R.S. requiring compliance with the County's existing
Code."
¶51
The ALJ's briefing order reiterated this requested
relief: "[T]he County requests the Commission declare
that DSNGR's physical changes to the Rockwood Station
constitute extensions, betterments, or additions subject to
§ 30-28-127, C.R.S., requiring compliance with the
County's existing land use code." The order then
stated that the ALJ had determined that the parties should
file briefs regarding "the merits of the Petition."
It further directed the parties to brief certain issues, and
although the order did not specifically list the issue of
whether the
23
changes constituted extensions, betterments, or additions, it
did demand that the parties brief "any other issues the
parties believe the Commission should address in this
proceeding."
¶52
In our view, the petition and briefing order both provided
adequate notice to the Railroad that the question of whether
the changes to the Rockwood Station constituted extensions,
betterments, or additions was before the ALJ. The petition
and briefing order both made clear that the County sought
findings on this question, and the briefing order indicated
that the parties should file briefing on "the
merits," even if it did not specifically enumerate this
issue. Furthermore, we note that the Railroad stated in its
brief before the ALJ that, if the County raised "new
issues" in its reply brief, then the Railroad reserved
the right to respond and would seek leave from the ALJ to do
so. It does not appear that the Railroad did so after being
served with the County's brief, which argued that the PUC
should find that the changes to the Rockwood Station
constituted extensions, betterments, or additions. The
Railroad's choice not to brief this issue does not mean
that it lacked notice that the issue was before the ALJ.
2.
Hearing
¶53
The Railroad next argues that the PUC deprived it of due
process by declining to hold a hearing. We need not address
the question of whether the
24
Railroad had a right to a hearing in this petition for a
declaratory order proceeding, however, because the Railroad
never requested a hearing.
¶54
Pub. Utils. Comm'n, 4 Colo. Code Regs. 723-1:1401(a)
(2025) ("Rule 1401(a)") governs intervention in PUC
proceedings. It provides, in pertinent part:
If a person wishes to intervene and to request a hearing,
that person's intervention as of right or motion to
intervene by permission must state that the application or
petition is contested or opposed, must give reason why the
application or petition is contested or opposed, and must
explicitly request a hearing.
Id. (emphasis added).
¶55
Here, the Railroad's notice of intervention as of right
cited Rule 1401(a) and, consistent with that rule, stated
that the Railroad contested and opposed the petition and
explained why it did so. The notice, however, did not request
a hearing. Nor did the Railroad request a hearing at any
other point while the petition was pending before the ALJ.
Rather, the Railroad raised the issue for the first time in
its exceptions to the ALJ's Recommended Decision.
¶56
Because the Railroad did not request a hearing as required by
Rule 1401(a), the ALJ did not err by not holding a hearing.
3.
The Railroad's
Remaining Contentions
¶57
The Railroad contends that the PUC deprived it of due process
in several other respects. We address and reject each of
these arguments in turn.
25
¶58
The Railroad first argues that the PUC unlawfully accepted
the County's petition without notice to the Railroad. The
PUC entertains petitions for declaratory orders in its
discretion. § 24-4-105(11). Furthermore, the Railroad
cites no applicable authority, and we have seen none,
suggesting that the PUC must provide notice before accepting
a petition for a declaratory ruling.
¶59
Pub. Utils. Comm'n, 4 Colo. Code Regs. 723-1:1206(a)
(2025) generally requires the PUC to provide notice of
applications or petitions to any person who may be affected
by the grant or denial of the application or petition.
Subsection (c)(III), however, provides, in pertinent part,
"Nothing in paragraph (a) of this rule shall require the
Commission to provide notice of . . . a petition for
declaratory order or a petition for rulemaking, until the
Commission in its discretion opens a proceeding regarding
such a petition." Pub. Utils. Comm'n, 4 Colo. Code
Regs. 723-1:1206(c)(III) (2025) ("Rule
1206(c)(III)"). Here, the PUC complied with Rule
1206(c)(III) by providing notice to the Railroad
after it had accepted the petition and opened a
proceeding regarding it.
¶60
The Railroad also argues that the PUC deprived it of due
process by requiring it to file briefing with the ALJ before
the County did so. As a factual matter, the County
did file the first explanation of its position when
it filed its petition. Thus, we believe that it was proper
for the ALJ to order the Railroad to file a "brief in
response to the Petition" and for the County thereafter
to file a
26
"reply brief." The Railroad cites no applicable
authority, and we are aware of none, that suggests that such
a briefing procedure is impermissible or shifts the burden of
proof. To the contrary, providing the County with the
opportunity to file the final brief is consistent with its
holding the burden of persuasion. See, e.g.,
C.R.C.P. 121, § 1-15(1)(c) (allowing the moving party to
file the final reply brief); C.A.R. 28(c) (allowing the
appellant to file the final reply brief).
¶61
The Railroad also contends that the PUC impermissibly relied
on guidance from a member of its advisory staff in reaching
its decision. The Railroad provides little detail regarding
the facts underlying this argument, but the PUC has
represented in its briefing that the argument refers to the
presentation by the Chief of Rail and Transit Safety and a
senior assistant attorney general, who acted as advisors in
this matter, at the PUC's public meeting on the petition.
We have previously determined that the PUC may reasonably
choose to have advisory staff, with staff members'
expertise, assist its Commissioners in their deliberations,
even though the Commissioners remain the decisionmakers and
may reject any or all of the advisory staff's analysis or
recommendations. See Bd. of Cnty. Comm'rs v. Colo.
Pub. Utils. Comm'n, 157 P.3d 1083, 1085, 1093 (Colo.
2007). The Railroad has presented no evidence or law
suggesting that the use of this established practice in these
proceedings was improper.
27
¶62
Lastly, the Railroad contends that the PUC failed to include
the transcript of the PUC's public meeting in the record
that it certified for judicial review and disabled access to
the recording of the meeting. The Commissioners'
deliberations and the presentations by its advisory staff do
not constitute evidence that must be included in the record.
Id. at 1093. In any event, the PUC has represented
that it records its meetings as a courtesy and generally
maintains the recordings for two years. The recording of the
meeting that occurred in this case is currently available on
the PUC's website.
¶63
For all of these reasons, we conclude that the PUC did not
deprive the Railroad of due process in this case.
E.
The PUC's Conclusion Was
Just and
Reasonable and Supported by the
Evidence
¶64
Finally, we conclude that the PUC's determination that
the changes to the Rockwood Station constituted extensions,
betterments, or additions to buildings, structures, or plant
or other equipment was just and reasonable and in accordance
with the evidence.
¶65
Before this court, the Railroad primarily argues that the
changes did not constitute extensions, betterments, or
additions to buildings, structures, or plant or other
equipment because they were not changes to any
"buildings, structures, or plant or other
equipment." Although it does not appear that the
Railroad raised this argument below, we will briefly address
it. And because the parties have
28
focused their arguments before us on the changes to the
Rockwood Station's parking lot, we will do the same.
¶66
An "extension" is "[a]n increase, enlargement,
or augmentation." Extension, Black's Law
Dictionary (12th ed. 2024). The Railroad does not dispute
that it enlarged its parking lot.
¶67
And a parking lot may constitute a "structure." In
Clark v. Town of Estes Park, 686 P.2d 777,
779 n.5 (Colo. 1984), we defined "structure" as
"something constructed or built" and concluded that
a parking lot fit that definition. (Quoting
Structure, Webster's International Dictionary
(3d ed. 1961)). Furthermore, because section 30-28-127
delineates "structures" separately from
"buildings," those two terms must have different
meanings. In fact, "building" is defined as
"[a] structure with walls and a roof, esp. a permanent
structure," Building, Black's Law
Dictionary (12th ed. 2024), suggesting that a structure need
not have walls and a roof, as a parking lot does not.
¶68
Accordingly, we perceive no error in the PUC's finding
that the enlargement of the parking lot at issue here was an
extension, betterment, or addition to a building, structure,
or plant or other equipment.
¶69
The Railroad's remaining arguments on this issue are
unconvincing.
¶70
The Railroad contends that the changes to the Rockwood
Station cannot constitute extensions, betterments, or
additions to buildings, structures, or plant
29
or other equipment because they are temporary. But section
30-28-127 does not contain any temporal qualifier, and we
cannot read one into the statute. See People v.
Howell, 2024 CO 42, ¶ 8, 550 P.3d 679, 683 (noting
that we may not add or subtract words from a statute).
Furthermore, the above-quoted definition of
"building" as "[a] structure with walls and a
roof, esp. a permanent structure," Building,
Black's Law Dictionary, makes clear that a structure may,
but need not, be permanent.
¶71
The Railroad further argues that "extension" should
have the same meaning in section 30-28-127 as it does in
section 40-5-101(1)(a), which governs changes that require a
certificate of public convenience and necessity and which the
ALJ concluded did not apply to the changes here.
¶72
Section 40-5-101(1)(a) provides, in pertinent part, "A
public utility shall not begin the construction of a new
facility, plant, or system or the extension of its facility,
plant, or system without first obtaining from the commission
a certificate that the present or future public convenience
and necessity require, or will require, the construction or
extension." Even if "extension" had the same
meaning in this provision as it has in section 30-28-127,
however, the extensions concern different things.
Specifically, section 30-28-127 concerns "extensions,
betterments, or additions to buildings, structures, or plant
or other equipment." Section 40-5-101(1)(a), in
contrast, concerns "the extension of [a public
utility's] facility,
30
plant, or system." The ALJ thus could, and did,
reasonably conclude that the changes to the Rockwood Station
satisfied the former but did not satisfy the latter. ¶73
Accordingly, we conclude that the PUC's determination
that the changes to the Rockwood Station constituted
extensions, betterments, or additions to buildings,
structures, or plant or other equipment was just and
reasonable and in accordance with the evidence.
III.
Conclusion
¶74
For these reasons, we conclude that the PUC regularly pursued
its authority in reaching its decision.
¶75
Accordingly, we affirm the district court's judgment
upholding the PUC's decision below.
---------
Notes:
[1] Specifically, the Railroad raises the
following issues:
1. Whether the PUC violated Article III of the
Colorado Constitution by exercising judicial power to
interpret and apply section 30-28-127, which is not part of
the Public Utilities Law and governs land use regulation in a
county.
2. Whether the County lacked standing to seek, and the
PUC lacked jurisdiction to issue, a declaratory ruling
interpreting and applying C.R.S. § 30-28-127, which is
not part of the Public Utilities Law and governs land use
regulation in a county.
3. Whether the PUC violated DSNGR's constitutional
right to due process of law by issuing the declaratory ruling
sought by the County without providing proper notice and
without holding an evidentiary hearing.
4. Whether the PUC acted unlawfully in ruling that
DSNGR's changed use of the Rockwood Station in providing
passenger service on its line of railroad required approval
of the County under C.R.S. § 30-28-127.