Southern Utah Wilderness Alliance v. Board of State Lands and Forestry of State, 910129

• Decision Date: 27 February 1992
• Docket Number: No. 910129,910129
• Citation: 830 P.2d 233
• Parties: SOUTHERN UTAH WILDERNESS ALLIANCE, a Utah nonprofit corporation; Michael F. Heyrend as natural parent and general guardian of Natalie Heyrend, a minor; Robyn Evans Petty, natural parent and general guardian of Gray Evans Petty, Shannon Evans Petty, and Miles Cottam Petty, minors; and Utah Professional Archaeological Council, Petitioners, v. BOARD OF STATE LANDS AND FORESTRY OF THE STATE OF UTAH, Division of State Lands and Forestry, Thomas E. Johnson, and Shelton K. Johnson, Respondents.
• Court: Utah Supreme Court

Page 233

830 P.2d 233

SOUTHERN UTAH WILDERNESS ALLIANCE, a Utah nonprofit corporation; Michael F. Heyrend as natural parent and general guardian of Natalie Heyrend, a minor; Robyn Evans Petty, natural parent and general guardian of Gray Evans Petty, Shannon Evans Petty, and Miles Cottam Petty, minors and Utah Professional Archaeological Council, Petitioners, v. BOARD OF STATE LANDS AND FORESTRY OF THE STATE OF UTAH Division of State Lands and Forestry, Thomas E Johnson, and Shelton K. Johnson, Respondents.

No. 910129.

Supreme Court of Utah.

Feb. 27, 1992.

Wayne G. Petty, Michael F. Heyrend, Salt Lake City, for Southern Utah Wilderness Alliance and all individual plaintiffs.

Claudia F. Berry, Salt Lake City, for Utah Archaeological Council.

R. Paul Van Dam, Steven F. Alder, David S. Christensen, Salt Lake City, for Board of State Lands & Forestry.

DURHAM, Justice:

This case involves a challenge to the sale of a parcel of public land by the Division of State Lands and Forestry. At issue is whether jurisdiction over review of such a sale lies in the district court or in this court. We hold that pursuant to Utah Code Ann. § 78-2-2(3)(e)(iii), this court does not have jurisdiction over this review because the agency action at issue was not a final order or decree from a formal adjudicative proceeding. See Utah Code Ann. § 78-2-2(3)(e)(iii) (Supp.1991). Consequently, we dismiss this case for lack of jurisdiction.

On September 19, 1989, the Division of State Lands and Forestry received an application for the purchase of eighty acres of state trust lands located in Grand County. Pursuant to Division rules governing the sale of state lands, see Utah Admin.R. 632- 80 (1990), the Division notified adjoining property owners and lessees. It also provided notice to, and requested comments from, various other parties, including petitioners Southern Utah Wilderness Alliance (SUWA) and the Utah Professional Archaeological Council (UPAC).

Subsequently, the Division prepared a record of decision (ROD), setting forth the agency action, the factual background, the statutes and rules authorizing agency action, the Division's conclusions, and the procedures for reviewing the decision. The Division director executed the ROD on November 30, 1990.

Thereafter, the Division set a time and place for a public sale of the property. On February 19, 1991, the day before the scheduled sale, SUWA delivered to the Division written objections to the sale and requested that the sale be cancelled. On February 20, 1991, the sale was held, and on February 25, 1991, a certificate of sale was executed. On March 6, 1991, petitioners by letter asked the Board for review of the sale. On March 11, 1991, the director notified petitioners that the request for Board review had not been filed within the time required by the rule. On March 22, 1991, petitioners filed their petition for writ of review with this court and also filed a complaint in the Third District Court for Salt Lake City.

Respondents challenge the jurisdiction of this court. They contend that when dealing with matters originating with the Board of State Lands, this court has jurisdiction only over final orders arising out of formal adjudicative proceedings or decrees arising out of formal adjudicative proceedings. See Utah Code Ann. § 78-2-2(3)(e)(iii) (Supp.1991). The proceeding at issue, they argue, was an informal adjudicative proceeding, and thus, this court lacks jurisdiction over the petition. ¹

Every court has the power to determine the extent of its own jurisdiction. See Thomas v. District Court, 110 Utah 245, 171 P.2d 667, 675 (1946). This court's jurisdiction is established by the Utah Constitution and by statute. See Utah Const. art. VIII, § 3; Utah Code Ann. § 78-2-2 (Supp.1991); City of Monticello v. Christensen, 788 P.2d 513, 518 (Utah), cert. denied, 498 U.S. 841, 111 S.Ct. 120, 112 L.Ed.2d 89 (1990). In the absence of a specific statute granting us jurisdiction over a writ of review from an agency proceeding, we have no jurisdiction. DeBry v. Salt Lake County Bd. of Appeals, 764 P.2d 627, 628 (Utah Ct.App.1988).

As a threshold matter, we must decide whether the Utah Administrative Procedures Act (UAPA) applies to this agency proceeding. Section 63-46b-1(2)(g) of UAPA provides that UAPA does not apply to

state agency actions relating to management of state funds, and contracts for the purchase or sale of products, real property, supplies, goods or services by or for the state, or by or for an agency of the state, except as provided in such contracts, or judicial review of those actions.

Utah Code Ann. § 63-46b-1(2)(g) (Supp.1991) (emphasis added). The plain language of this provision exempts agency proceedings relating to the purchase and sale of real property from the purview of UAPA. It similarly excludes such proceedings from the judicial review provisions of UAPA.

The State interprets the above subsection to mean that UAPA provisions do not apply to actions relating to the purchase or sale of real property but do apply to judicial review of such sales. We disagree. The comma separating the clauses "except as provided in such contracts, or judicial review of those actions" indicates that the word "except" modifies only "as provided in such contracts" but does not modify "or judicial review of those actions." Furthermore, a reading of subsection (2) in its entirety makes clear that the phrase "or judicial review of those actions" was intended to exempt the actions described in that subsection from the judicial review provisions of UAPA. A number of exemptions listed in other parts of subsection (2) end with identical language to that found in subsection (2)(g) ("or judicial review of those actions"). See Utah Code Ann. § 63-46b-1(2)(a), (c), (d), (e), & (j) (Supp.1991). These related subsections unambiguously provide that UAPA judicial review provisions do not apply to the exempted activity. Thus, section 63-46b-1(2)(g) specifies that UAPA governs neither the transaction itself nor judicial review of that transaction.

Our analysis does not end with an examination of section 63-46b-1(2)(g), however. A separate title specifically governing actions of the Board and the Division of State Lands mandates that "[b]oard review of final agency action and judicial review of final board action shall be governed by Chapter 46b, Title 63, Administrative Procedures Act." Utah Code Ann. § 65A-1-7(5) (Supp.1991). Thus, section 65A-1-7(5) conflicts with UAPA's exclusion of the sale of state lands from its judicial review provisions. Given the rule of statutory construction that the specific governs the general, see Pan Energy v. Martin, 813 P.2d 1142, 1145 (Utah 1991); Perry v. Pioneer Wholesale Supply Co., 681 P.2d 214, 216 (Utah 1984), the language in title 65A controls. We therefore hold that notwithstanding subsection 63-46b-1(2)(g)'s exclusion, UAPA governs judicial review of agency proceedings of the Board or Division of State Lands and Forestry involving the purchase or sale of real property.

Having determined that UAPA applies to the proceeding at issue, we now move to an analysis of section 78-2-2(3) and (6) of the judicial code, which governs this court's appellate jurisdiction over administrative proceedings. Section 78-2-2(3)(e)(iii) of the judicial code provides:

(3) The Supreme Court has appellate jurisdiction, including jurisdiction of interlocutory appeals over:

...;

(e) final orders and decrees in formal adjudicative proceedings originating with:

...;

(iii) the Board of State Lands and Forestry.

Utah Code Ann. § 78-2-2(3)(e)(iii) (Supp.1991). SUWA contends that the phrase "formal adjudicative proceedings" modifies only the word "decrees" and that the term "final orders" should be read independently. Therefore, SUWA argues, this court has jurisdiction over decrees in formal adjudicative proceedings originating with the Board and over all final orders from any proceeding originating with the Board--regardless of whether those orders arose from formal adjudicative proceedings. We find this argument unpersuasive.

Any ambiguity in section 78-2-2(3)(e) is resolved by a review of several related jurisdictional statutes. Subsection 78-2-2(6) of the Supreme Court's jurisdictional statute mandates that the Supreme Court comply with UAPA requirements in reviewing agency adjudicative proceedings. Utah Code Ann. § 78-2-2(6) (Supp.1991). UAPA's judicial review provision pertaining to Supreme Court review of agency actions states, "As provided by statute, the Supreme Court or the Court of Appeals has jurisdiction to review all final agency action resulting from formal adjudicative proceedings." Utah Code Ann. § 63-46b-16(1) (1989). The language in this provision does not condition this court's jurisdiction on whether the action from which a party seeks review is a final order or a decree. Instead, it mandates that this court review all actions from formal adjudicatory proceedings.

Additionally, subsection 63-46b-15(1)...