1989-10-10_REVISION - M1988112 ‎(35)‎

• Permit No: M1988112
• IBM Index Class Name: REVISION
• Doc Date: 10/10/1989
• Doc Name: MEMO MLRB CONTINUING JURISDICTION DURING PENDENCY OF JUDICIAL APPEAL
• From: PARCEL MAURO HULTIN & SPAANSTRA PC
• Type & Sequence: AM1
• Media Type: D
• Archive: No

IV. DIBCII88ZON.
r
A. The General Rule In Colorado Is That An Agency Exercises
Continuing Jurisdiction Over A Permit Or License Pending
Judicial Review.
The initiation of an action for judicial review under
C.R.S. §24-4-106 (1988 Repl. Vol.) of the APA does not affect
either the validity of a reclamation permit or the continuing
jurisdiction of the MLRB to enforce the terms and conditions of
such permit or to modify, suspend or revoke the permit itself. The
Colorado Court of Appeals has adopted the rule that absent a stay,
the filing of an action for judicial review does not e:uspend the
operation of an otherwise final agency action. In Jefferson County
School District No. R-1 v. Industrial Commission, 698 P.2d 1350
(Colo.App. 1984) the Court of Appeals stated:
... the pendency of a review proceeding does not suspend
the operation of an otherwise final administrative elction
unless the review removes the entire case to the
appellate court for de novo consideration or is suspended
by a supersedeas order. See Denver & Rio Grande R~pilway
v. Crawford, 11 Colo. 598, 19 P.673 (1888).
In the instant case clearly, the court's review is not
a de novo review nor has there been any order of the court staying,
suspending or otherwise affecting the jurisdiction of t:he MLRB in
this matter. Accordingly, the general rule controls acid the MLRB
retains continuing jurisdiction.
Further, Colorado courts have held consistently that a
district court does not have jurisdiction to restrain an
administrative agency from performing its statutory functions. See
Chonoski v. Dept. of Revenue, Motor Vehicle Division, 6'99 P.2d 416
(Colo.App. 1985); Kort v. Hufna4el, 729 P.2d 370 (Cclo. 1986);
State Board of Cosmetoloov v. District Court, 530 P.2d :L978 (Colo.
1974). To hold otherwise, the courts have reasoned, would be a
clear violation of the separation of powers. Chonos supra;
Kort, supra. The MLRB has a statutory obligation t~o review a
permit amendment application submitted in compliances with the
Colorado Mined Land Reclamation Act ("CMLRA") C.R.S. 34•-32-101, et
seo., (1984 Repl. Vol.). Absent a showing that the ageency action
will conflict with the court's jurisdiction on review, a district
court constitutionally lacks power to enjoin an agency which is
carrying out its statutory function.
The continuing jurisdiction of the MLRB over the hermit is a
fundamental premise of the regulatory scheme set forth by the
CMLRA. For example, §34-32-124 of the CMLRA provides the MLRB with
authority to enforce the conditions of an order, permit or
regulation. The MLRB may modify, suspend or revoke reclamation
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