1979-06-22_ENFORCEMENT - M1978352

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In summary, Mr. Nottingham neither applied for nor received a permit from the MLRB in connection with the challenged proceeding. Rather, Mr. Nottingham' s role in this proceeding was solely as a representative of the permit applicant. Plaintiffs thus have no claim for relief against Mr. Nottingham, nor any basis for his joinder in this action as a party defendant. II . Plaintiffs Have Failed to Exhaust Their Admin- istrative Remedies and Have Failed to Qualify as "Parties" to the Administrative Proceeding. A. Plaintiffs have failed to exhaust adminis- trative remedies. In response to Defendants' argument that Plain- tiffs' Complaint should be dismissed for failure to exhaust available administrative remedies, Plaintiffs maintain that they have an absolute right to judicial review under the Colorado Administrative Procedure Act based upon the exis- tence of "final agency action" by way of permit issuance. See, Section 24-4-106 (2) , C.R.S. 1973 . This argument to- tally ignores the numerous Colorado cases which establish exhaustion of adminstrative remedies as a "judicial prere- quisite" to the review of administrative decisions. See, e.g. , Denver-Laramie-Walden Truck Line v. Denver-Fort Collins Freight Service, Inc. 156 Colo. 366, 399 P.2d 242 (1965) , State Board of Cosmetology v. District Court 187 Colo. 175, 530 P.2d 1278 (1974) ; Hannum v. Hillyard 130 Colo. 37, 278 P. 2d 1015, 1017 (1955) . In fact, two judicial commentators have recently observed that the litigant must first ex- haust all administrative remedies prior to seeking judicial review. " Silverstein and Ruland, Preparation of the Appeal from an Administrative Decision, The Colorado Lawyer 2305, 2306-07 (December 1975) . Final agency action is an essential, but not ex- clusive, precondition to judicial review of administrative action. Recent Colorado cases make clear that finality and exhaustion are equal and independent requirements for -3-