American Heritage Railways, Inc. and The Durango & Silverton Narrow Gauge Railroad Company v. Colorado Public Utilities Commission, and La Plata County, Colorado. Intervenor-Appellee

2025 CO 27

• Court: Supreme Court of Colorado
• Decided: May 27, 2025
• Docket: 24SA184
• Status: Published

Opinion

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

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                  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.

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          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]

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         ¶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.

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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

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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

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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

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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

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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

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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

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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

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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.

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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).

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         ¶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.

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         ¶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,

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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,

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"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).

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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.

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         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

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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

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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.

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         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

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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

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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.

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         ¶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

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"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.

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         ¶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

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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

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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,

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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.

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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.