Heartland v. CDPHE

• Court: Colorado Court of Appeals
• Decided: May 22, 2025
• Docket: 23CA993
• Status: Unpublished

Opinion

23CA0993 Heartland v CDPHE 05-22-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0993 City and County of Denver District Court No. 17CV32604 Honorable Jill D. Dorancy, Judge

Heartland Biogas, LLC,

Plaintiff-Appellant,

v.

Colorado Department of Public Health and Environment and Weld County Board of County Commissioners,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division II Opinion by JUDGE JOHNSON Fox and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 22, 2025

Holland & Hart LLP, Stephen G. Masciocchi, Jessica J. Smith, Denver, Colorado, for Plaintiff-Appellant

Philip J. Weiser, Attorney General, Fredrick C. Haines, Senior Litigation Counsel & Assistant Solicitor General, Allison R. Ailer, Senior Assistant Attorney General, Joseph G. Michaels, Assistant Solicitor General, Denver, Colorado, for Defendant-Appellee Colorado Department of Public Health and Environment

Hall & Evans, L.L.C., Mathew J. Hegarty, Alexandria L. Bell, Denver, Colorado, for Defendant-Appellee Weld County Board of County Commissioners ¶1 Plaintiff, Heartland Biogas, LLC (Heartland), appeals the

district court’s judgment finding in favor of defendants, Colorado

Department of Public Health and Environment (CDPHE) and Weld

County Board of County Commissioners (BOCC). Heartland sued

CDPHE and BOCC contending that both entities took without just

compensation its Certificate of Designation (Designation), and by

extension, its Use by Special Review Permit 1704 (Permit 1704), as

well as its Certificate of Registration 9931 (Registration 9931),1

causing Heartland to close its facility so that those entities also took

without just compensation Heartland’s property interest in its land

improvements.

¶2 Although Heartland requested a jury trial, CDPHE and BOCC

asked the court to hold a bench trial because Heartland’s remaining

claims at the time of trial concerned regulatory takings. The court

agreed. Also before trial, CDPHE and BOCC disclosed new

witnesses to testify at trial, and the court allowed those witnesses to

1 The parties used a variety of acronyms to refer to various terms.

To avoid an opinion of alphabet soup, we may use different abbreviations.

1 testify even though Heartland argued that the disclosures were

untimely.

¶3 Following a multiple-day bench trial, the district court issued

a lengthy order finding that (1) Heartland did not have a

designation; (2) CDPHE’s and BOCC’s actions were not regulatory

takings per se or takings under the factual inquiry in Palazzolo v.

Rhode Island, 533 U.S. 606 (2001); and (3) BOCC validly exercised

its police power by indefinitely suspending Permit 1704.

¶4 On appeal, Heartland contends that the district court erred

because (1) Heartland was entitled to a jury trial; (2) Heartland had

a designation and, thus, a protected property interest; (3) CDPHE’s

and BOCC’s actions forcing Heartland’s facility to close constituted

regulatory takings; (4) BOCC’s exercise of its police power had no

bearing on Heartland’s takings claims, and regardless, the BOCC

invalidly exercised its police power by shutting down the facility;

and (5) the court abused its discretion by allowing some of the late-

disclosed witnesses to testify at trial. We affirm.

I. Background

¶5 In 2009, Shelton Land and Cattle, Ltd. (Shelton) owned

property in Weld County and leased it to Heartland Renewable

2 Energy, LLC (Heartland Renewable), which has no relationship to

Heartland. In April 2009, Heartland Renewable applied for a

designation with CDPHE and BOCC to operate a solid waste

disposal site and facility on the property. Heartland Renewable

hired AGProfessionals, LLC, an engineering development company

(consulting firm), to assist with the regulatory process. As part of

its application, Heartland Renewable, through its consulting firm,

submitted a proposed Engineering, Design, and Operations Plan

(the 2010 EDOP) to CDPHE for that agency’s review. The 2010

EDOP governs operation of the facility.

¶6 Heartland Renewable’s facility proposed to use manure and

food waste — also referred to as substrates — to create three

products: renewable natural gas (through an anaerobic digestion

process),2 compost (from the facility’s digested solids), and liquid

soil amendment or LSA (from the facility’s effluent, which is the

2 “Anaerobic digestion is a process through which bacteria break

down organic matter — such as animal manure, wastewater biosolids, and food wastes — in the absence of oxygen.” Lambland, Inc. v. Heartland Biogas, LLC, No. 22-1184, 2023 WL 8276140, at *1 n.1 (10th Cir. Nov. 30, 2023) (unpublished opinion) (quoting U.S. Env’t Prot. Agency, How Does Anaerobic Digestion Work?, https://perma.cc/T3ZZ-XFUM).

3 liquid portion of the digestate and, thus, is also referred to as

digestate liquor). CDPHE approved the 2010 EDOP, authorizing the

facility to convert the substrates into renewable natural gas.

¶7 Following CDPHE’s approval, BOCC issued a resolution on

July 21, 2010 (2010 Resolution), approving Permit 1704, a

document that also included Heartland Renewable and Shelton’s

Designation and identified forty-two development standards, which

were site-specific conditions that the facility agreed to abide by to

protect the health and welfare of the community. The 2010

Resolution stated, “Noncompliance with any of the foregoing

development standards may be reason for revocation of [Permit

1704] by [BOCC].”

¶8 In November 2012, the consulting firm began discussions with

CDPHE regarding the permit for processing compost and LSA.

Fertilizer (i.e., compost or LSA, the latter being a conditioner to help

improve the condition of the soil) is regulated by the Colorado

Department of Agriculture (CDA). The regulated entity must submit

a label to CDA if the entity seeks to distribute a fertilizer made from

solid waste. Once the CDA approves the label, it issues a

registration that allows the company to distribute the product.

4 Although Heartland intended to use the facility for compost, it never

applied to CDA for a registration of its “digested solids.”

¶9 Part of the parties’ dispute revolves around whether the LSA is

regulated exclusively by the CDA or whether CDPHE shares in the

review process. In January 2013, the consulting firm’s internal

emails indicated that, to obtain CDPHE’s approval of an updated

EDOP, Heartland Renewable would need to obtain a “beneficial use

determination” (BUD) from CDPHE before the facility distributed

LSA for any land application. But in March 2013, CDPHE, Weld

County, and representatives from AGEnergy USA, LLC (AGEnergy)

— a consulting business associated with Heartland Renewable —

had a meeting about regulating the LSA. AGEnergy representatives

left the meeting believing that if Heartland Renewable obtained a

registration from CDA for the LSA, no BUD from CDPHE would be

required.

¶ 10 On June 6, 2013, CDA issued to Heartland Renewable

Registration 9931 for its LSA, which authorized the facility to

distribute its LSA as a soil amendment until June 30, 2014.

Heartland Renewable submitted an updated EDOP (2013 EDOP) to

5 CDPHE, which indicated the facility’s intended production of

another output — the LSA.

¶ 11 Beginning in June 2013, EDF Renewables, Inc. — the parent

company to Heartland (parent company) — began due diligence to

investigate purchase of the facility from Heartland Renewable. In

August 2013, Heartland acquired the facility. Heartland notified

BOCC and CDPHE of the transfer of ownership; specifically,

Heartland sent to CDPHE an updated EDOP in October 2013

requesting that the facility’s name be updated from Heartland

Renewable to Heartland. Heartland continued to use the consulting

firm and hired legal counsel to assist Heartland in navigating the

various laws and regulations pertaining to operating the facility.

¶ 12 From August 2013 to November 2016, Heartland never applied

for a designation when it became the operator of the facility.

Heartland had been told by its parent company — which based its

information on advice from legal counsel — that Heartland

Renewable’s Designation ran with the land and, thus, the

Designation transferred to Heartland when it acquired the facility.

Heartland purchased the facility believing it did not need to apply to

CDPHE for a BUD for its LSA, while CDPHE continued to assert

6 that if the LSA was to have land application, Heartland would need

a BUD.

¶ 13 Beginning in September 2016, BOCC held the first of three

show cause hearings to address over a hundred county residents’

odor complaints about Heartland’s facility. In October 2016,

CDPHE contacted Weld County employees, expressing concerns

with Heartland’s Designation. At this point, CDPHE reached out to

the Colorado Attorney General’s Office, counsel for CDPHE, to

investigate the status of Heartland’s Designation.

¶ 14 Also in September 2016, CDPHE sent an email to Heartland

indicating that Heartland could not distribute its LSA to farmers

until it received a BUD from CDPHE. In December 2016, BOCC

adopted CDPHE’s position and informed Heartland to stop

distribution of its LSA until “proper approval is granted.”

¶ 15 On November 8, 2016, First Assistant Attorney General David

Kreutzer (Kreutzer) sent a letter to BOCC detailing the facility’s

Designation history (Kreutzer letter). The Kreutzer letter asserted

that Heartland did not have a designation. It acknowledged that

Heartland had notified CDPHE that the facility had transferred

ownership and the agency had not let Heartland know at that time

7 that it needed to apply for its own designation. But it also indicated

that CDPHE would “encourage Heartland . . . to apply for a

[designation] soon” and the agency would review any updated EDOP

to ensure that the facility’s “financial assurance [was] in order.”

¶ 16 Following the Kreutzer letter, on November 14, 2016, BOCC

held its second show cause hearing in which it heard from

approximately two hundred additional county residents concerning

odor complaints. BOCC also learned of the Kreutzer letter and

continued the hearing until December 2016.

¶ 17 On December 19, 2016, BOCC held its third show cause

hearing. Having determined that Heartland had not applied for a

designation and was noncompliant with eight development

standards, BOCC suspended Heartland’s Permit 1704 until the

entity obtained approval for a designation from CDPHE and

complied with the development standards. BOCC followed its oral

ruling by issuing a resolution on December 28, 2016 that

indefinitely suspended Heartland’s Permit 1704 until it obtained a

designation.

¶ 18 In January 2017 and thereafter, Weld County and CDPHE

continued to encourage Heartland to apply for a designation in its

8 own name but Heartland never did. Instead, Heartland shut down

the facility at the end of January 2017. In July 2017, Heartland

sued CDPHE and BOCC.3 In late June 2020, Heartland sold the

facility to Rockland Capital for $2 million.

II. Standard of Review

¶ 19 We review a district court’s judgment following a bench trial as

a mixed question of fact and law. State Farm Mut. Auto. Ins. Co. v.

Johnson, 2017 CO 68, ¶ 12; Fear v. GEICO Cas. Co., 2023 COA 31,

¶ 15, aff’d on other grounds, 2024 CO 77. We review the district

court’s factual findings for clear error and will only reverse them if

there is no support in the record. Levine v. Katz, 192 P.3d 1008,

1012 (Colo. App. 2006). We review the district court’s legal

conclusions de novo. Mintz v. Accident & Inj. Med. Specialists, PC,

284 P.3d 62, 65 (Colo. App. 2010), aff’d, 2012 CO 50.

¶ 20 We review the district court’s interpretation of constitutional

provisions, statutes, and administrative regulations de novo.

Cisneros v. Elder, 2022 CO 13M, ¶ 21 (statutes); Gomez v. JP

Trucking, Inc., 2022 CO 21, ¶ 27 (administrative regulations); Colo.

3 Initially Heartland sued CDPHE and CDA. Later, CDA was dismissed and BOCC was added.

9 Dep’t of State v. Unite for Colo., 2024 COA 31, ¶ 26 (constitutional

provisions) (cert. granted Nov. 25, 2024).

¶ 21 We interpret constitutional provisions and administrative

regulations by employing the same rules of statutory construction

as we do for statutes. Unite for Colo., ¶ 26 (constitutional

provisions); Brennan v. Broadmoor Hotel, Inc., 2023 COA 53, ¶ 14

(administrative regulations). Our goal is to give effect to the General

Assembly’s intent. Parker Water & Sanitation Dist. v. Rein, 2024 CO

71M, ¶ 42. We read the statute as a whole, giving harmonious and

sensible effects to all parts, and we presume the General Assembly

intended the entire statute to be effective. Id. If the statute is plain

and unambiguous on its face, we look no further. Town of Vail v.

Vill. Inn Plaza-Phase V Condo. Ass’n, 2021 COA 108, ¶ 11.

¶ 22 Although we are not bound by an agency’s interpretation of

the statute it enforces or its administrative regulations, we will defer

to it if reasonable. Colo. Stormwater Council v. Water Quality Control

Div. of the Colo. Dep’t of Pub. Health & Env’t, 2023 COA 11, ¶ 38.

10 III. Applicable Law

¶ 23 To provide a framework, we will set forth the applicable law for

takings claims and then address CDPHE’s regulation of solid waste

facilities, which it concurrently shares with BOCC.

A. Applicable Law on Regulatory Takings Claims

¶ 24 Article II, section 15 of the Colorado Constitution provides that

“[p]rivate property shall not be taken or damaged, for public or

private use, without just compensation.” “While a landowner is not

entitled to the most beneficial use of his or her land, extensive

regulatory interference warrants compensation.” Animas Valley

Sand & Gravel, Inc. v. Bd. of Cnty. Comm’rs, 38 P.3d 59, 63 (Colo.

2001) (citation omitted). A “taking can be effected by a legal

interference with the physical use, possession, enjoyment, or

disposition of property, or by acts which translate to an exercise of

dominion and control by a governmental entity.” City of Northglenn

v. Grynberg, 846 P.2d 175, 182 (Colo. 1993).

¶ 25 A regulatory taking may be established if “the regulation

imposes a ‘very high’ level of interference.” Forest View Co. v. Town

of Monument, 2020 CO 52, ¶ 22 (quoting Animas Valley Sand &

Gravel, 38 P.3d at 65); see also Rodgers v. Bd. of Cnty. Comm’rs,

11 2013 COA 61, ¶ 18 (A regulatory taking occurs “when a government

deprives a private property owner of the use of land through

application of its laws or regulations.”), rev’d on other grounds, 2015

CO 56. Under the test announced by the U.S. Supreme Court in

Palazzolo, a landowner may prove such a claim “by showing either a

per se taking or a taking under a fact-specific inquiry.” Rodgers, ¶

18; see also Animas Valley Sand & Gravel, 38 P.3d at 65 (adopting

the Palazzolo test).

¶ 26 A per se taking is “with certain qualifications . . . a regulation

which ‘denies all economically beneficial or productive use of land,’”

and which will require compensation under the Takings Clause.

Murr v. Wisconsin, 582 U.S. 383, 393 (2017) (quoting Palazzolo, 533

U.S. at 617).

¶ 27 Absent a per se taking, a property owner may still prove a

regulatory taking under a fact-specific inquiry. Under that inquiry,

a taking occurs if the property “retains more than a de minimis

value but, when its diminished economic value is considered in

connection with other factors, the property effectively has been

taken from its owner.” Rodgers, ¶ 20 (quoting Animas Valley Sand

& Gravel, 38 P.3d at 66). Under this analysis, courts look at

12 scenarios in which “a regulation impedes the use of property

without depriving the owner of all economically beneficial use,” by

considering ‘“a complex [set] of factors,’ including (1) the economic

impact of the regulation on the claimant; (2) the extent to which the

regulation has interfered with distinct investment-backed

expectations; and (3) the character of the governmental action.”

Murr, 582 U.S. at 393 (quoting Palazzolo, 533 U.S. at 617); see

also Town of Dillon v. Yacht Club Condos. Home Owners Ass’n, 2014

CO 37, ¶ 44 (Whether a regulation constitutes a regulatory taking

“focuses on the ‘magnitude of the burden a particular regulation

imposes on private property rights.’” (quoting Lingle v. Chevron

U.S.A. Inc., 544 U.S. 528, 542 (2005))).

¶ 28 Before a court even addresses whether a taking has occurred,

it must first determine whether the individual or entity has a vested

property interest at the time of the alleged taking. See Asmussen v.

United States, 2013 CO 54, ¶ 2; see also Kobobel v. State, Dep’t of

Nat. Res., 249 P.3d 1127, 1134 (Colo. 2011) (plaintiffs had no

protected property interest in the “unfettered use of the water in

their wells,” so the state could not have “taken” their property, and

their takings claims were properly dismissed); Classen v. City &

13 Cnty. of Denver, 30 P.3d 710, 713 (Colo. App. 2000) (holding that

plaintiff property owners had no protected property interest in the

navigable airspace, so there was no compensable physical taking).

¶ 29 A vested property interest may be created by the Colorado or

Federal Constitutions, but such interests may also “be created and

their dimensions defined by other sources such as contracts or

state statutes or rules.” Anderson v. Colo. State Dep’t of Pers., 756

P.2d 969, 976 (Colo. 1988); see also Dove Valley Bus. Park Assocs.,

Ltd. v. Bd. of Cnty. Comm’rs, 945 P.2d 395, 401 (Colo. 1997)

(“Property interests ‘are defined by existing rules or understandings

that stem from an independent source such as state law.’” (quoting

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161

(1980))); JJR 1, LLC v. Mt. Crested Butte, 160 P.3d 365, 369 (Colo.

App. 2007) (a protected property interest is not limited to tangible

physical property, but also includes a legitimate claim of

entitlement to other circumscribed benefits, which may be derived

from state or municipal legislative enactment).

14 B. Applicable Law Regarding CDPHE and BOCC’s Authority over Solid Waste Facilities

¶ 30 CDPHE is authorized under the Solid Wastes Disposal Sites

and Facilities Act (the Act) to regulate and oversee solid waste

facilities and sites. See §§ 30-20-100.5 to -124, C.R.S. 2024. Any

person or entity owning or operating a solid waste facility “shall first

obtain a certificate of designation from the governing body having

jurisdiction over the area in which such site and facility is located.”

§ 30-20-102(1), C.R.S. 2024. A “[g]overning body having

jurisdiction” is defined as “the board of county commissioners if a

site and facility is located in any unincorporated portion of a county

and means the governing body of the appropriate municipality if a

site and facility is located within an incorporated area.” § 30-20-

101(2.5), C.R.S. 2024.

¶ 31 The person or entity applying for a designation must first

submit an application with the BOCC, and then the application

shall be “referred to [CDPHE] for review and for recommendation as

to approval or disapproval.” § 30-20-103(1), C.R.S. 2024. CDPHE’s

technical review of the application is based on criteria “by the solid

and hazardous waste commission, the water quality control

15 commission, and the air quality control commission.” Id. CDPHE’s

approval of the application is necessary before BOCC may issue the

designation. § 30-20-105(1), C.R.S. 2024. Once issued, the

“certificate shall be displayed in a prominent place at the site and

facility.” Id.

¶ 32 In addition to the designation, a solid waste facility must also

obtain a permit from the BOCC. Besides a permit being necessary

under the Act, Weld County deemed the solid waste facility to be in

an agricultural zone and required a permit “to ensure that [the

facility was] established and operated in a manner that is

compatible with existing and planned land USES in the

NEIGHBORHOOD” and “to protect and promote the health, safety,

convenience and general welfare of the present and future residents

of the COUNTY.” Weld County Zoning Ordinance § 23-2-200(A).

Applicants must comply with the factors identified in the Act, see

§ 30-20-104, C.R.S. 2024, and Weld County Zoning Ordinance

sections 23-1-10, 23-2-200, and 23-2-290.

IV. Jury Trial

¶ 33 Heartland contends that it was entitled to a jury trial for its

regulatory taking claims against CDPHE and BOCC because (1)

16 regulatory takings are different than other takings claims and, thus,

should be decided by a jury; and (2) C.R.C.P. 38 entitles it to a jury

trial as its claims are more legal than equitable. Resolution of the

first issue is dispositive, so we need not address the second.

¶ 34 Heartland requested a jury trial in its initial complaint, which

included two claims for promissory estoppel. As a result, the

parties assumed the case would be tried to a jury. But by the

operative third amended complaint, Heartland’s remaining claims

were limited to regulatory takings claims against CDPHE and

BOCC.

¶ 35 After the district court denied motions for summary judgment,

BOCC and CDPHE requested that the district court decide the

initial question of whether a taking had occurred. If the court

determined liability against defendants, they then agreed that

damages would be decided by a jury. The court agreed and

concluded that the “law is clear that the determination of whether a

taking occurred is a question of law to be decided by the court.”

Article II, section 15 of the Colorado Constitution provides that

[s]uch compensation shall be ascertained by a board of commissioners . . . or by a jury, when required by the owner of the property . . . ; and

17 whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question.

CDPHE and BOCC rely on the constitution’s plain language to

support their assertion that whether a taking occurred is

determined by the courts. But the constitution’s language does not

state this proposition as plainly as they claim. For two other

reasons, we agree that whether a regulatory taking has occurred is

a question reserved for the court’s determination.

¶ 36 First, Colorado courts treat the initial question of whether a

taking has occurred as one decided by the court. Kobobel, 249 P.3d

at 1133 (citing Animas Valley Sand & Gravel, 38 P.3d at 63).

Heartland tries to distinguish this case law as limited to eminent

domain proceedings, which they argue are different from non-

eminent domain regulatory takings. But a closer reading of the

case law suggests otherwise. To place the case law in context,

however, we first address the three types of takings claims: (1)

eminent domain proceedings; (2) inverse condemnation actions; and

(3) regulatory taking claims. See State, Dep’t of Health v. Mill, 809

P.2d 434, 437-38, 440-441 (Colo. 1991) (Mill I).

18 ¶ 37 Colorado eminent domain proceedings are governed by

statute. See §§ 38-1-101 to -107, C.R.S. 2024. Thus, “the General

Assembly must confer [the power of eminent domain] expressly or

by clear implication; ‘it can never be implied from doubtful

language.’” Sos v. Roaring Fork Transp. Auth., 2017 COA 142, ¶ 16

(citations omitted). The eminent domain statute provides that “[a]ll

questions and issues, except the amount of compensation, shall be

determined by the court unless all parties interested in the action

stipulate and agree that the compensation may be so ascertained by

the court.” § 38-1-101(2)(a).

¶ 38 Inverse condemnation proceedings involve a property owner

bringing a claim “when state action has the effect of substantially

depriving the property owner of the use and enjoyment of the

property, but the State has not formally brought condemnation

proceedings.” Kobobel, 249 P.3d at 1133. Eminent domain and

inverse condemnation proceedings are conducted in the same

manner. See Grynberg, 846 P.2d at 178 (“Because an inverse

condemnation action is based on the ‘takings’ clause of our

constitution, it is to be tried as if it were an eminent domain

proceeding.”). A plaintiff may only bring an inverse condemnation

19 proceeding against a state entity who has the power of eminent

domain at the time of the taking. Mill I, 809 P.2d at 437.

¶ 39 Regulatory takings are distinct from eminent domain and

inverse condemnation proceedings because they allow a plaintiff to

sue even when the state entity does not possess the power of

eminent domain. Id. at 440. A regulatory taking claim exists

because “[l]imiting a property owner to an inverse condemnation

action against an agency that does not have the power of eminent

domain would enable the State to take property without paying

compensation, in violation of the United States and Colorado

Constitutions.” Id.

¶ 40 A “central dynamic” of regulatory takings jurisprudence is its

“flexibility” by allowing “ad hoc, factual inquiries, designed to allow

careful examination and weighing of all the relevant

circumstances.” Murr, 582 U.S. at 393-94 (quoting Tahoe-Sierra

Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 322

(2002)). Although “[r]egulatory takings are difficult to define,” Mill I,

809 P.2d at 440, “[t]he determination of whether a regulation goes

‘too far’ . . . is essentially an ‘ad hoc, factual’ inquiry.” Animas

Valley Sand & Gravel, 38 P.3d at 65 (citation omitted)

20 ¶ 41 In State, Department of Health v. Mill, 887 P.2d 993 (Colo.

1994) (Mill II), the supreme court instructed courts on the factors to

consider to determine whether a taking had occurred. In that case,

the court reviewed both regulatory takings and eminent domain

claims brought by the operator of a uranium milling operation

against the Colorado Department of Health. The supreme court

explained that courts should look at several factors that later

became associated with Palazzolo, including “the character of the

governmental action, its economic impact, and its interference with

reasonable investment-backed expectations.” Mill II, 887 P.2d at

999 (quoting Golden Pac. Bancorp v. United States, 15 F.3d 1066,

1072 (Fed. Cir. 1994)). These factors all relate to determining

whether the diminution in a landowner’s property is a regulatory

taking.

¶ 42 In Animas Valley Sand & Gravel, 38 P.3d at 65, the supreme

court analyzed the two-tiered Palazzolo inquiry. The court said that

“[i]f a landowner fails to meet its burden of proving a per se taking,

it can still prove a taking under a fact-specific inquiry.” Id. When

discussing the regulations at issue and their effect on the

economically beneficial uses of the property at issue, the court

21 articulated the necessary fact-specific inquiry that should be

undertaken, stating, “[t]he trial court must determine to what degree

the current restrictions on [landowner’s] property are attributable to

the plan rather than to the accumulated state and federal

regulations of the past several decades,” and “the trial court must

then quantify the resulting diminution in value, if any, of the

property.” Id. at 66 (emphasis added).

¶ 43 As part of the second portion of the inquiry, Animas Valley

Sand & Gravel recognized the ad hoc inquiry that must be

undertaken by the district court, noting, “[e]ach case must be

decided on its own facts.” Id. at 67. It further indicated that “if [the

landowner] is to prevail, it must show that it falls into the rare

category of a landowner whose land has a value slightly greater

than de minimis but, nonetheless, given the totality of the

circumstances, has had its land taken by a government regulation.”

Id.

¶ 44 And there are numerous Colorado regulatory takings cases in

which the court determined the takings question. For example,

Kobobel holds expressly that the taking question is one for the

court. 249 P.3d at 1133 (the plaintiff-well owners alleged that “the

22 State’s cease and desist orders amounted to a regulatory taking of

their properties because” it deprived them “of their vested rights to

use the water in their wells and thereby precluded any economically

beneficial use of their land”); see also Krupp v. Breckenridge

Sanitation Dist., 19 P.3d 687, 695 (Colo. 2001) (plaintiff-landowner

brought an action under C.R.C.P. 106(a)(4) alleging that the special

district’s assessment was an unconstitutional taking of their

property and the court applied the codified regulatory taking

provision for discretionary and adjudicatory land use decisions

under section 29-20-203(1), C.R.S. 2000); Rodgers, ¶¶ 18, 22

(affirming a district court’s order that “no regulatory taking had

occurred because the County’s regulations served a legitimate

purpose, the regulations were reasonably applied to plaintiffs, and

that application did not deny them an economically viable use of

their property”).

¶ 45 Heartland has not cited, nor are we aware of, any Colorado

case holding that a regulatory taking must be decided by a jury

instead of the court.

¶ 46 Second, Heartland’s contention that eminent domain

proceedings are not generally fact-intensive inquiries so as to be

23 decided by the court is undermined by Carousel Farms Metropolitan

District v. Woodcrest Homes, Inc., 2019 CO 51, ¶¶ 17-18. That case

dealt with eminent domain proceedings brought by a district

against a developer. Id. at ¶¶ 8-9. The supreme court concluded

that takings claims are reviewed as “mixed questions of law and

fact” with a district court’s findings of fact reviewed for clear error

and its legal conclusions reviewed de novo. Id. at ¶¶ 17-18. Given

that there may be disputed issues of fact in an eminent domain

proceeding as well, it makes no sense for a regulatory takings claim

to be treated differently; indeed, the court is able to resolve any

factual disputes for a regulatory taking as it does in an eminent

domain proceeding.

¶ 47 And Heartland’s reliance on City of Monterey v. Del Monte

Dunes at Monterey, Ltd., 526 U.S. 687, 721 (1999), to support that

a regulatory takings claim is subject to a jury trial is misplaced. Del

Monte Dunes said that “the issue whether a landowner has been

deprived of all economically viable use of his property is a

predominantly factual question,” and “in actions at law otherwise

within the purview of the Seventh Amendment, this question is for

the jury.” Id. at 720-21 (emphasis added). But the Seventh

24 Amendment does not apply to cases in state court. See id. at 719.

And in Colorado, there is no constitutional right to a jury trial in a

civil action. Mason v. Farm Credit of S. Colo., 2018 CO 46, ¶ 9.

Thus, the supreme court’s federal constitutional holding in Del

Monte Dunes has no bearing on whether the existence of a

regulatory taking is for the court or the jury under state law.

¶ 48 We also disagree that CDPHE and BOCC acted inconsistently

by litigating the case as if liability and damages would be tried

before a jury. When CDPHE asked for a bench trial on the takings

issue near the eve of trial, the court asked the government why it

had not raised this issue earlier. CDPHE said it assumed Heartland

would ask the court for an evidentiary hearing on the liability issue

because the initial inquiry is a question of law. To support its

position, CDPHE provided jury instructions related only to damages

for just compensation and not for liability. We acknowledge that

CDPHE and BOCC should have stated their positions on this matter

sooner with the court. But given the constitutional provision and

the resulting case law, the court’s ruling was correct.

¶ 49 Thus, we conclude the district court did not err by deciding

whether CDPHE’s and BOCC’s actions constituted a taking.

25 V. Heartland’s Takings Claims

¶ 50 Heartland contends that CDPHE’s and BOCC’s actions forced

it to shut down its facility and amounted to regulatory taking of its

(1) Designation and Permit 1704; (2) Registration 9931; and (3)

property improvements. These takings claims presuppose that

Heartland had a protected property interest. But we agree with the

district court that Heartland did not have a protected property

interest because it lacked its own designation.4

A. Heartland’s Designation

¶ 51 Heartland contends that it had a protected property interest in

a designation because (1) when Heartland purchased the facility,

4 A license or permit is generally not considered “property” for

purposes of the Takings Clause, as it is considered a privilege that the government may, at its discretion, take away. See, e.g., Fed. Lands Legal Consortium v. United States, 195 F.3d 1190, 1197 (10th Cir. 1999). But we review the district court’s property interest analysis on the merits because whether the government improperly denied the existence of a valid license or permit that was issued to an entity is distinct from whether the government lawfully suspended or revoked the license. But given our disposition that Heartland lacked a protected property interest, we need not review the district court’s determinations that CDPHE’s and BOCC’s actions did not constitute takings per se or takings under the fact- specific inquiry. See Fasing v. LaFond, 944 P.2d 608, 612 (Colo. App. 1997) (an appellate court may affirm a district court’s judgment on a “narrower basis”).

26 Heartland Renewable’s Designation ran with the land; (2) Heartland

Renewable’s Designation was transferred to Heartland pursuant to

a now-repealed CDPHE regulation, Rule 1.8.4(D), 6 Code Colo.

Regs. 1007-2 (effective until July 14, 2018) (Rule 1.8.4); or (3)

defendants were equitably estopped from denying Heartland had a

designation. We reject all three arguments.

1. The Designation Did Not Run with the Land

¶ 52 In evaluating whether Heartland Renewable’s Designation ran

with the land, the district court reasoned that the Act and case law

supported that a designation is non-transferable; Heartland’s

employees knew the process for a designation had two parts;

Heartland was provided with the opportunity to apply for a

designation but never did; and Heartland was granted, at most, a

privilege if it had its own designation. We conclude the district

court’s analysis is correct for four reasons.

¶ 53 First, as the district court decided, City & County of Denver v.

Eggert, 647 P.2d 216, 221-22 (Colo. 1982), is controlling that such

a designation is non-transferable from property owner to property

owner without prior approval. In that case, the city and its private

contractor did not apply for a new designation on grounds they

27 believed the facility at issue was covered by the city’s existing

designation. Id. at 221. The court held that the facility could

operate under the city’s designation “if pursuant to contract with

Denver and in compliance with the Solid Wastes Act.” Id. at 226.

¶ 54 But for the contractual relationship between the city and the

new operator, the court held that section 30-20-104(1)(c) “implies

that a new certificate is required when there is a change of operator,

because the [county] Commissioners could not consider the ability

of the operator to manage the site absent an application for a new

certificate.” Id. at 226. This is because the county commissioners

and CDPHE must consider whether the applicant can “comply with

the health standards and operating procedures” of the state and

local government. Id. (quoting § 30-20-104(1)(c)). Eggert further

reasoned that the “Solid Wastes Act is in the nature of a licensing

statute which requires the operator of a waste disposal facility to

obtain a certificate” and that, “normally, a certificate to operate a

particular site and facility is personal and nontransferable without

prior approval.” Id.

¶ 55 Heartland did not contract with Heartland Renewable to share

operations; instead Heartland became the new owner and operator,

28 so Eggert’s rule is directly on point. In addition, the language of

section 30-20-104(1)(c) has not changed since Eggert. We are

bound by supreme court precedent, see In re Estate of Ramstetter,

2016 COA 81, ¶ 40, and see no reason why the supreme court

would depart from its interpretation of the Act.

¶ 56 And Heartland’s reliance on Board of County Commissioners v.

Colorado Department of Public Health & Environment, 218 P.3d 336,

338 (Colo. 2009), and Town of Lyons v. Bashor, 867 P.2d 159, 160-

61 (Colo. App. 1993), does not advance its position.

¶ 57 In County Commissioners, 218 P.3d at 338, the supreme court

determined that a county had standing to sue CDPHE when the

regulated entity had not first applied for a designation under the

Act, yet CDPHE had already issued to the regulated entity a license

and permit under the Low-Level Radioactive Waste Act and the

Hazardous Waste Siting Act. The case cites section 30-20-102(1) of

the Act by noting that “[a] [designation] is a land use and zoning

device by which a county selects sites for waste disposal.” Id. at

n.1. But this footnote says nothing about the designation “running

with the land.” And even assuming the footnote could be read in

that way, the supreme court could not decide whether the

29 designation ran with the land because the central dispute in the

case was that the regulated entity had not applied for a designation.

Therefore, the footnote is at most dicta and the case is inapposite.

¶ 58 Lyons, 867 P.2d at 160, is likewise not applicable. There, the

supreme court held that the town could bring an action to enjoin a

current or future zoning violation. But the court held that the town

could not enjoin the sale of the parcel at issue because, although

the lot contained two residences, the property was a prior

nonconforming use before the town adopted its zoning ordinances.

The supreme court held that “the property’s exemption from the

Town’s zoning regulations as a prior nonconforming use runs with

the land.” Id. No one has argued that Heartland’s facility

constituted a “nonconforming use,” or that Permit 1704 constituted

a nonconforming use exempt from BOCC’s regulation.

¶ 59 Second, while there was testimony supporting that BOCC told

Heartland it had a designation, the record supports that Heartland

failed to take steps that could have clarified issues. As relied on by

Heartland, it is true that Permit 1704 included the forty-three

development standards, of which Heartland says that standard

thirty references a facility’s requirement to comply with the

30 designation. And there was testimony that Weld County believed

that the Designation transferred with the land. The district court,

however, concluded with record support that “[Permit 1704] and the

[Designation] are two separate permits with two distinct purposes.”

See also Lambland, Inc. v. Heartland Biogas, LLC, No. 22-1184,

2023 WL 8276140, at *5 n.5 (10th Cir. Nov. 30, 2023) (unpublished

opinion) (determining “[Permit 1704] and [the Designation] are two

separate permits with two distinct purposes”).

¶ 60 And the court noted that Heartland was aware a designation

and permit were two separate requirements. The court concluded

that despite BOCC’s confusion (and to some extent CDPHE’s) as to

whether Heartland had its own designation, “the duty and

responsibility was on Heartland to ensure it had all applicable

permits to own and operate a solid waste site and facility.”

¶ 61 The record supports the court’s legal conclusions. The fact

that Heartland hired attorney Mave Gasaway (Gasaway) to

determine Heartland’s regulatory requirements demonstrates that it

understood that it had the obligation to comply with the law.

Gasaway confirmed that she did not conduct legal research before

advising Heartland that the Designation ran with the land,

31 specifically admitting that she had read neither the Act nor Eggert.

If she had conducted legal research, any misunderstanding or

miscommunication would likely have been clarified. For example,

Gasaway did not ask CDPHE about Heartland Renewable’s

Designation or other legal requirements under the Act.

¶ 62 Additionally, Tom Haren (Haren) — owner of the consulting

firm — acknowledged that BOCC cannot issue a designation unless

CDPHE approves the EDOP. He said, “[T]he County would approve

[the permit], but the County cannot approve a [designation] or a

solid waste site without CDPHE approving it first.” Haren also

acknowledged that he heard Gasaway’s testimony and she agreed

that the Designation and Permit 1704 are “separate permits.” And

he testified that he did not ask any Weld County employees whether

Heartland Renewable’s Designation transferred to Heartland.

¶ 63 Third, Haren’s testimony confirms that BOCC cannot control

the designation process. The Act is unequivocal that BOCC may

not issue a designation without approval from CDPHE. Indeed,

section 30-20-105(1) directs that BOCC “shall not issue a certificate

of designation if the department has recommended disapproval

pursuant to section 30-20-103.” We read the word “shall” as

32 mandatory, so BOCC’s issuance of Permit 1704 is not controlling.

See Colo. Real Est. Comm’n v. Vizzi, 2019 COA 33, ¶ 27 (absent a

clear indication from the General Assembly, courts interpret the

word “shall” to be mandatory, not discretionary).

¶ 64 Finally, Heartland argued that while it did not need to apply

for a new designation because Heartland Renewable’s Designation

ran with the land, any new application was futile because it might

not have been approved by the regulators. The court rejected this

contention, stating, “Heartland’s argument that their application

would not have been authorized falls flat because it was the same

regulators requesting the new application.”

¶ 65 The record supports that CDPHE and BOCC encouraged

Heartland to apply for a designation and that neither government

entity was actively trying to shut down Heartland. Indeed, the fact

that CDPHE and BOCC were asking Heartland to apply for its own

designation supports that its predecessor’s Designation did not run

with the land. Heartland employees acknowledge that those entities

encouraged them to submit an application. Specifically, the

Kreutzer letter said, “[CDPHE] will encourage Heartland Biogas LLC

to apply for a [designation] soon.” And Ralph Daley — vice-

33 president of Heartland’s parent company and the lead development

officer for the facility — was asked, “Isn’t it true that David Kreutzer

encouraged Heartland to apply for its own [Designation]?” He

responded, “The letter did suggest that.”

¶ 66 Instead, Heartland took the position that it did not need to

apply for a designation because it already had one. When asked

why Heartland did not apply for one, Alfred Kurzenhauser — head

of the Heartland facility and of other bioenergy projects for the

parent company — responded, “Well, we — first of all, we didn’t

believe our [Designation] was invalid. We thought it was valid, and

we were advised it was valid.” Jason Thomas — the facility’s plant

manager — also testified that the company did not apply for a

designation because, “Heartland, in its original purchase of the

facility, didn’t need to because it had a [Designation].”

¶ 67 Even if Heartland disagreed with the government entities’

positions, the record does not support that applying for a

designation would have been futile. The court said, “Testimony was

provided that another solid waste facility was also directed to apply

for a new [designation] by Weld County employees which it

34 promptly did.” That other facility received its designation about

four months after application.

¶ 68 More significantly, though, testimony from Joe Schieffelin —

program manager for CDPHE’s solid waste and materials division —

confirmed that the agency viewed Heartland’s lack of a designation

as a “technical administrative violation,” it did not intend to treat

Heartland with a “heavy hand,” it intended to “expedite” the EDOP

approval process so that BOCC could issue a new designation, and

it had no intention to force Heartland to “stop” its operations.

2. CDPHE’s Rule 1.8.4(D) Did Not Permit the Transfer

¶ 69 Heartland contends that Rule 1.8.4(D) authorized the

Designation to transfer to a new owner because Heartland provided

financial assurances to CDPHE and BOCC.

¶ 70 When in effect, Rule 1.8.4(D) provided, “A certificate of

designation may not be transferred to a new owner or operator

unless, as part of the process, the assignment or transfer of the

financial instrument(s) or alternate financial assurance has been

reviewed and approved by the Department and the governing body

having jurisdiction.”

35 ¶ 71 CDPHE testified that the rule is now repealed because it was

determined to be inconsistent with section 30-20-104(1)(c) and

Eggert. See Colo. Consumer Health Initiative v. Colo. Bd. of Health,

240 P.3d 525, 528 (Colo. App. 2010) (An administrative regulation

“may not modify or contravene an existing statute, and any rule

that is inconsistent with or contrary to a statute is void.”).

¶ 72 Regardless, Heartland raised this argument in related

litigation and it was rejected. A purchaser of Heartland’s product

sued Heartland in federal district court on grounds that Heartland

failed to have a designation. In upholding the district court’s

determination that Heartland Renewable’s Designation did not

transfer to Heartland, the Tenth Circuit said, “Rule 1.8.4(D) does

not purport to outline the universe of requirements for transferring

a [designation].” Lambland, Inc., 2023 WL 8276140, at *4. The

court reasoned, “Rather, read in context, Rule 1.8.4(D) is part of a

subsection of rules on ‘Financial Assurance Criteria’ and, by its

terms, Rule 1.8.4(D) speaks only to ‘part of the process’ of transfer

to a new owner or operator.” Id. Regardless of any preclusive effect

of the Tenth Circuit’s holding, we find it persuasive and a

reasonable interpretation of the limited nature of the now-repealed

36 provision of Rule 1.8.4(D). In other words, to the extent Heartland

complied with Rule 1.8.4(D), that compliance did not in itself

transfer Heartland Renewable’s Designation to Heartland.

3. Equitable Estoppel

¶ 73 Finally, Heartland contends defendants were equitably

estopped from denying Heartland has a designation.

¶ 74 Equitable estoppel is a factual question that we review for

clear error. In re Marriage of Kann, 2017 COA 94, ¶ 62.

¶ 75 There are three elements of an equitable estoppel claim as it

relates to the party estopped:

• “[c]onduct which amounts to a false representation or

concealment of material facts, or, at least, which is

calculated to convey the impression that the facts are

otherwise than, and inconsistent with, those which the

party subsequently attempts to assert,” City of Thornton

v. Bijou Irrigation Co., 926 P.2d 1, 76 (Colo. 1996)

(quoting Aubert v. Town of Fruita, 559 P.2d 232, 234

(Colo. 1977));

37 • “intention, or at least expectation, that such conduct

shall be acted upon by the other party, id. (quoting

Aubert, 559 P.2d at 234); and

• “knowledge, actual or constructive, of the real facts,” id.

(quoting Aubert, 559 P.2d at 234).

¶ 76 As the party claiming estoppel, the individual or entity must

prove (1) lack of knowledge and of the means of knowledge of the

truth as to the facts in question; (2) reliance upon the conduct of

the party estopped; and (3) action based thereon of such a

character as to change his position prejudicially. Id. “[F]ailure to

establish any one of the elements of estoppel bars such a claim.”

¶ 77 On the merits, Heartland’s equitable estoppel claim fails

because it did not demonstrate that CDPHE or BOCC

misrepresented facts to it, much less that the government entities

knew those facts to be false at the time any statements were made.

Moreover, “[a]s a general rule, those who deal with the Government

are expected to know the law and may not rely on the conduct of

government agents contrary to the law.” Dep’t of Transp. v. First

Place, LLC, 148 P.3d 261, 267 (Colo. App. 2006) (quoting Emery

38 Mining Corp. v. Sec’y of Lab., 744 F.2d 1411, 1416 (10th Cir. 1984)).

The district court determined that Heartland was responsible for

knowing the laws and regulations related to owning and operating a

solid waste facility. And Heartland could have clarified any

misunderstanding with further steps taken by its legal counsel or

consulting firm.

¶ 78 But Heartland’s equitable estoppel claim fails on a more

fundamental basis as well. Heartland is estopped from raising such

a claim based on the position it took in a previous appeal in this

case. In that appeal, Heartland asserted that its regulatory takings

claims were not a tort, nor could such claims lie in tort and,

therefore, the court had improperly dismissed them because they

were not barred by the Colorado Governmental Immunity Act

(CGIA). See Heartland Biogas, LLC v. Colo. Dep’t of Pub. Health &

Env’t, (Colo. App. No. 19CA0860, Sept. 3, 2020) (not published

pursuant to C.A.R. 35(e)).

¶ 79 The CGIA provides that a “public entity is immune from

liability in all claims for injury that lie in tort or could lie in tort.”

§ 24-10-106(1), C.R.S. 2024. But “[e]quitable estoppel, because it is

based on the misrepresentation of facts, is fundamentally a tort

39 theory. The CGIA is applicable to such claims.” Berg v. State Bd. of

Agric., 919 P.2d 254, 259 (Colo. 1996) (citations omitted).

Heartland cannot now rely on the doctrine of equitable estoppel, as

it would be inconsistent with the position it previously took.

¶ 80 Although the court did not address the CGIA as a basis to

deny Heartland’s equitable estoppel claim, “we may affirm the trial

court’s ruling based on any grounds that are supported by the

record.” Rush Creek Sols., Inc. v. Ute Mountain Ute Tribe, 107 P.3d

402, 406 (Colo. App. 2004).

B. Registration 9931

¶ 81 The court concluded that Heartland needed a BUD from

CDPHE before it could distribute its compost or LSA for land

application. Heartland contends that this conclusion was error

because the court (1) made inconsistent findings by saying that

CDA had exclusive jurisdiction over fertilizer on one hand, and

determining that Heartland needed to obtain a BUD from CDPHE

on the other; and (2) failed to determine whether CDPHE’s actions

constituted a taking of its Registration 9931.

¶ 82 It is true that the district court made findings that CDA had

“exclusive regulatory authority over the liquid digestate,” but it also

40 concluded that, by a preponderance of the evidence, “CDPHE and

CDA are the technical experts in determining whether a compost

(solids) or effluent (liquids) can be suitable for off-site land

application/distribution.” This, however, is not reversible error

given the court was weighing the evidence and resolving conflicting

evidence.

¶ 83 The court said that based on the testimony of Haren and

David Snapp (Snapp) — CDPHE’s lead person at the relevant time

to handle BUDs — a BUD was required prior to land application of

the LSA as well as the solid compost. The court did not specifically

make findings that these witnesses were credible, but we conclude

that a credibility determination is implicit in the court’s ruling.

Indeed, there was conflicting evidence about the March 2013

meeting as to whether CDPHE ceded all authority to CDA for

regulation of Heartland Renewable’s compost and LSA or whether

CDPHE deferred making a determination as to how those products

might be regulated once the facility was operational. In this regard,

because there was conflicting evidence, the trier of fact had to weigh

the evidence and make credibility determinations to come to its

findings. See People in Interest of A.M. v. T.M., 2021 CO 14, ¶ 15.

41 Even if this meeting occurred before Heartland acquired ownership,

the record supports that CDPHE told Heartland that it needed a

BUD for its LSA.

¶ 84 Snapp explained his takeaway from the March 2013 meeting

and his following interactions with Heartland through 2013:

• He attended the March 2013 meeting even though he was not

listed on the agenda, as a coworker came by asking him to join

at the last minute because BUDs were to be discussed.

• The portion of the facility dealing with the liquid digestate was

not yet operational so CDPHE would not have made a

determination to relinquish regulatory oversight solely to CDA

until it had more information about the product.

• The 2013 EDOP included a placeholder for Heartland and

AGEnergy to later seek a BUD for the LSA and compost so that

CDPHE would approve it.

• CDPHE was concerned with the over-application of the LSA

because of its liquid form and because it might contaminate

groundwater, which were different concerns not generally

present with other composting products.

42 • Even if other sections of CDPHE were responsible for review of

certain regulatory acts by the facility’s operations (e.g., the

Water Quality and Control Division), Snapp handled all

CDPHE BUD determinations.

• Snapp distinctly remembered telling Heartland Renewable that

“they would need to either get a discharge permit or a [BUD].”

• From January 2013 to September 2016, Snapp testified that

CDPHE told Heartland or its consultants eight or nine times

that it had to obtain a BUD before land application of its

effluent.

• Snapp explained the “dual track” regulation of LSA between

CDPHE and CDA, saying, “[CDPHE] regulate[s] everything that

goes in and out of a solid waste facility, and CDA regulates

products.”

• After receiving additional information and test samples from

Heartland, CDPHE conditionally approved a BUD for

Heartland’s LSA in January 2017.

Because there is record support that CDA and CDPHE regulate

different aspects of LSA and CDPHE repeatedly told Heartland it

would need a BUD regardless of Registration 9931, the district

43 court’s findings are not clearly erroneous. Levine, 192 P.3d at

1012.

¶ 85 And based on the court’s determination that only CDA has

authority to revoke or suspend Registration 9931, and a CDA

representative testified that no regulatory action was taken against

Heartland’s Registration 9931, CDPHE or BOCC could not have

“taken” that property interest. It is true that BOCC ordered

Heartland to stop distributing its LSA until it complied with

CDPHE’s BUD process. But the record supports that once CDPHE

received the requested information from Heartland, Snapp provided

conditional approval within a day. Therefore, implicit in the court’s

findings, CDPHE’s or BOCC’s actions did not constitute a regulatory

taking of Registration 9931 because (1) Heartland was not in

compliance with CDPHE regulations; (2) BOCC simply followed

CDPHE’s regulations; (3) Heartland admitted to putting chlorine in

the ponds that stored the digestate liquid (one of CDPHE’s

concerns); and (4) CDPHE ultimately provided BUD approval once

Heartland provided the “lab data from a representative sample of

the LSA to show suitability for intended beneficial uses and an

ongoing sampling plan to be land applied.” See In re Marriage of

44 Nelson, 2012 COA 205, ¶ 41 (although the district court made no

express findings that retroactive application of its ruling would not

create financial hardship for husband, district court’s other findings

support the “apparent conclusion”); Foster v. Phillips, 6 P.3d 791,

796 (Colo. App. 1999) (although it is a better practice for a district

court to make express findings, they may be implicit in the court’s

ruling).

C. Heartland’s Land and Property Improvements

¶ 86 Heartland contends that the court completely ignored its

undisputed protected property interest in its land and property

improvements. Although not specifically addressed by the court, we

conclude the court’s judgment implicitly rejected this claim. Rush

Creek Sols., 107 P.3d at 406.

¶ 87 The district court’s order said that Animas Sand & Gravel

directed that the “appropriate focus of a takings inquiry” involves

“the property rights as an aggregate,” meaning that “where an

owner possesses a full ‘bundle’ of property rights, the destruction of

one ‘strand’ of the bundle is not a taking, because the aggregate

must be viewed in its entirety.” Animas Valley Sand & Gravel, 38

P.3d at 68 (quoting Andrus v. Allard, 444 U.S. 51, 65-66 (1979)).

45 ¶ 88 Because Heartland is not entitled to the “most beneficial use

of” its land, see id. at 63, we cannot say the court committed

reversible error. Heartland does not allege that it could not, before

it sold the facility, use the land for another commercially viable

purpose; it had, as discussed above, the opportunity to apply for its

own designation; and it could have used the facility to manufacture

compost (digested solids) while it worked to comply with the

applicable regulations for its LSA.

VI. BOCC Police Powers

¶ 89 Heartland contends that the district court’s findings that

BOCC properly exercised its police powers lacks evidentiary

support. It contends that (1) BOCC and CDPHE did not give it

sufficient time to apply for a designation; (2) because Heartland was

not in violation of local odor ordinances, the record lacks

evidentiary support for the valid exercise of BOCC’s police power; (3)

even if BOCC’s use of its police power was reasonable, its actions

could still constitute a regulatory taking; and (4) the district court

erred by allowing additional witnesses to testify for CDPHE and

BOCC when Heartland did not have time to conduct discovery.

46 ¶ 90 Because Heartland lacked a protected property interest in a

designation, there was no regulatory taking regardless of whether

BOCC validly exercised its police power. And because Heartland

did not raise a separate due process challenge against CDPHE or

BOCC, we need not review Heartland’s additional contentions. See

Fasing v. LaFond, 944 P.2d 608, 612 (Colo. App. 1997).

VII. Conclusion

¶ 91 We affirm the district court’s judgment.

JUDGE FOX and JUDGE SCHOCK concur.