2017-03-09_REVISION - C1981041 - Laserfiche WebLink

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for Evidentiary Administrative Hearing before A.L.J." to DRMS on February 16, 2017 ("Carey Demand"). Specifically, Fontanari and Carey demand that an evidentiary hearing concerning the Proposed Decision be conducted before and Administrative Law Judge ("ALJ") assigned from outside DRMS. Fontanari and Carey cite C.R.S. § 24-4-105 of the Colorado Administrative Procedures Act (the "APA") as authority for their request. For the reasons set forth below, the law requires that the demand for an ALJ must be denied. II. ARGUMENT A. Colorado Law and C.R.S. § 34-33-116 require that the demands of Fontanari and Carey for an evidentiary hearing before an ALJ on the Proposed Decision be Denied. Hearings on Technical Revisions, like TR -69, must be before the Mined Lands Reclamation Board. Fontanari and Carey have assumed that there is a right under the APA to a hearing before an ALJ with respect to their objections to the Proposed Decision. Against the applicable statutory and regulatory framework, that assumption is wrong. Rather, the law requires that the hearing be to the Colorado Mined Lands Reclamation Board (the "Board") at its next regularly scheduled meeting. The APA is applicable to every agency of the state having statewide territorial jurisdiction. See C.R.S. § 24-4-107. Here, the APA applies to DRMS as it meets the statutory definition of "state agency." See id. However, the APA serves as a "gap -filler, and its provisions apply to agency actions unless they conflict with a specific provision of the agency's statute or another statutory provision preempts the provisions of the APA." Well Augmentation Subdist. of Cent. Colo. Water Conservancy Dist. v. City of Aurora, 221 P.3d 399, 417 (Colo.2009). If the "APA is applicable to a particular agency, both the APA and statutes specific to that agency should be read together and harmonized to the extent possible; however, if a