dissenting.
I respectfully dissent.
I agree with the trial court’s October 24, 1992 order that the proceedings before Mined Land Reclamation Division (MLRD) and Water Quality Control Division (WQCD) “... involved the same parties (the State of Colorado), an identity of subject matter, identity of administrative claims for relief, and a final judgment of MLRD. Therefore, the decision of MLRD in the form of a Settlement Agreement ... is res judicata and bars the later WQCD proceedings. Therefore, the WQCD Findings, Ruling, and Order [entered October 10, 1990] are void.”
I further agree with the trial court’s analysis in which it stated:
“Res judicata applies to administrative proceedings, as well as traditional court suits.
While the doctrines of res judicata and collateral estoppel were developed in the context of judicial proceedings, it is now well settled that in a proper case they may be applied to administrative proceedings as well. Umberfield v. School Dist. No. 11, 185 Colo. 165, 522 P.2d 730, 732 (1974).
“Res judicata may therefore be applied to an administrative hearing, Whelden v. Board of County Comn’rs, 782 P.2d 853 (Colo.App. 1989), and it operates to bar a second action on the same claim as one litigated in a prior proceeding when ‘there is a final judgment, identity of subject matter, claims for relief, and parties to the action.’ City & County of Denver v. Block 173, 814 P.2d 824, 830 (Colo. 1991). Each of these standards is met here.
“First, there is a final judgment from MLRD. Its decision ... finally determined all the issues before it concerning unlawful discharges into the stream from Outfall No. 016. [Mid-Continent] [ (]MCR[) ] performed by paying a stipulated fine.
“Second, the subject matter of each proceeding was the same. Each proceeding dealt with unlawful discharges produced by mining operations from Outfall No. 016 into *1390the stream. Stripped of the cumbersome technical jargon, the subject matter of each agency’s focus was the same. Each dealt with the same period of time, January and February, 1989; the same source of pollution, Outfall No. 016; the same general kinds of pollutants, TSS, TDS, oil, iron, and grease; the same damaged streams, Coal Creek and the Crystal River,; the same operator, MCR; and the same general types of acts of omission and commission by MCR.
“The claims for relief originating from each agency were the same. MLRD sought civil penalties, and abatement and a clean-up. WQCD also sought civil penalties. Both agencies considered each day of violation to be a separate offense, subjecting the operator to additional civil penalties. Therefore, the factual basis for seeking relief and the relief sought was virtually identical in each proceeding.
“The parties to each action were the same. For purposes of res judicata and collateral estoppel, there is privity between officers of the same government, and acts of one agency of the government are acts of another agency, in this limited context. In Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S.Ct. 907, 84 L.Ed. 1263 (1940), the United States Supreme Court emphasized the substance over the form of how a government acts, stating:
Identity of parties is not a mere matter of form, but of substance. Parties nominally the same may be, in legal effect, different ... and parties nominally different may be, in legal effect, the same. There is privity between officers- of the same government so that a judgment in a suit between a party and a representative of the United States is res judicata in relitigation of the same issue between that party and another officer of the United States.
“This logical analysis of the federal bureaucracy applies with equal ... force to the State of Colorado. The Court therefore concludes that for purposes of res judicata, the party is the same in both proceedings. It is the State of Colorado; acting through the MLRD in the first action and the WQCD in the second action.
“The Attorney General ... argues that the bar of res judicata should be applied with caution and that public policy disfavors it. The Court does apply it with caution, and only on the facts adduced in this docket. The more focused public policy can be found in Salida School Dist. R-32-J v. Morrison, 732 P.2d 1160 (Colo.1987), where the Court explained the purpose of the doctrine as follows:
The doctrines of collateral estoppel and res judicata ‘relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication.’
“In the peculiar facts in this docket, each agency had the benefit of the samples taken by the other. They were sharing the investigative function. Each obviously had technical expertise; the technicalities each placed in their respective permits to MCR reveal this proficiency. Clearly, each agency knew what the other was doing in pursuing MCR. Their separate courses exposed MCR to the cost and aggravation of multiple punitive litigation for the same activity. The duality of prosecution did not conserve administrative agency resources, but instead spiraled costs to the State and MCR.
“There is nothing in the technical or scientific aspects of the proceedings which justifies dual prosecutions. There were winter discharges of liquids bearing suspended solids, oil, grease, and iron. The point of discharge was evident, the cause of the discharge was obvious, the cure was apparent, and the responsible party was conspicuous.
“The Defense also argues that the separate enabling statutes militate against the bar of res judicata. Although the technical vocabulary of the statutes differs, as applied to a coal mining operation near sensitive streams, they are remarkably similar in policy and approach. The Colorado Water Quality Control Act, C.R.S. § 25-8-101, et. seq., is designed to ‘achieve the maximum practical degree of water quality in the waters of the state consistent with the welfare of the state,’ recognizing that ‘pollution of state waters may constitute a menace to public health and welfare,’ C.R.S. § 25-8-102(1). The Act *1391also contains the public policy ‘to conserve state waters and protect ... the quality thereof ... for domestic, agricultural, industrial, and recreational uses, and for other beneficial uses, taking into consideration the requirements of such uses.... ’ C.R.S. § 25-8-102(2). The mining act carries forth the same general policies; it aims ‘to protect society and the environment from the adverse effects of surface coal mining operations ... ’ C.R.S. § 34-33-102. In implementing the Act, MLRD must examine the ‘probable consequences of the surface coal mining and reclamation operations, both on and off the mine site, with respect to the hydrologic regime and the quantity and quality of water in surface and groundwater systems, including dissolved and suspended solids....’ C.R.S. § 34-33-110(l)G). Therefore, both statutes look closely to the degradation of water quality caused by coal mining operations, and one cannot discern any real difference in their policies in this area. In effect, WQCD and MLRD should be pursuing the same results. Their cooperation in obtaining samples for their respective prosecutions reinforces the similarity of their purposes and their policies. Applying res judi-cata will not therefore prevent the State of Colorado from enforcing the statutory policies of preventing water pollution from coal mining operations. It will, however, eliminate dual prosecutions and create the same cooperation in concluding their prosecutions that these agencies displayed in obtaining samples to begin them.
“Therefore, applied to the specific facts here, the application of res judicata comports with the relevant public policy goal in each agency’s enabling legislation — nonpolluting mining operations. In addition, it will spare the operator of duplicitous prosecutions from overlapping agencies.”
Accordingly, I would affirm the trial court’s judgment.