Wyoming Coalition v. Wyoming Game & Fish Com'n

• Decision Date: 06 June 1994
• Docket Number: No. 93-168,93-168
• Citation: 875 P.2d 729
• Parties: WYOMING COALITION, a Wyoming non-profit association; Jackson Hole Outfitters' Association, a Wyoming non-profit association; Star Valley Chamber of Commerce, a Wyoming non-profit corporation; Cody Country Outfitters & Guides' Association, a Wyoming non-profit association; Meeteetse Multiple Use Association, a Wyoming non-profit association; Lincoln County Outfitters' Association, a Wyoming non-profit association; Sublette County Outfitters & Guides' Association, a Wyoming non-profit corporation; and Wyoming Outfitters' Association, a Wyoming non-profit association, Appellants (Petitioners), v. WYOMING GAME & FISH COMMISSION, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 729

875 P.2d 729

WYOMING COALITION, a Wyoming non-profit association; Jackson Hole Outfitters' Association, a Wyoming non-profit association; Star Valley Chamber of Commerce, a Wyoming non-profit corporation; Cody Country Outfitters & Guides' Association, a Wyoming non-profit association; Meeteetse Multiple Use Association, a Wyoming non-profit association; Lincoln County Outfitters' Association, a Wyoming non-profit association; Sublette County Outfitters & Guides' Association, a Wyoming non-profit corporation; and Wyoming Outfitters' Association, a Wyoming non-profit association, Appellants (Petitioners), v. WYOMING GAME & FISH COMMISSION, Appellee (Respondent).

No. 93-168.

Supreme Court of Wyoming.

June 6, 1994.

Robert R. Ranck and William P. Schwartz, Ranck & Schwartz, Jackson, for appellants.

Joseph B. Meyer, Atty. Gen., Mary B. Guthrie, Deputy Atty. Gen., Ron Arnold, Sr. Asst. Atty. Gen., for appellee.

William Perry Pendley and Joanne Herlihy, Denver, for amicus curiae, Mountain States Legal Foundation.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

THOMAS, Justice.

The issue in this case focuses upon the constitutionality of the delegation of rulemaking authority to the Wyoming Game and Fish Commission pursuant to WYO.STAT. § 23-1-302 (Supp.1992). The debate is over the question of sufficient constraint of the delegated authority by identifiable standards. The Wyoming Game and Fish Commission (Commission) adopted rules and regulations reducing the September bull elk hunting season in Teton County for the hunting season of 1992. Upon judicial review, the district court of the Ninth Judicial District in and for Teton County upheld the Commission's regulations. We agree with the district court that the policy statement articulated in WYO.STAT. § 23-1-103 (1991) is an adequate identifiable legislative standard to justify the regulations adopted relating to the hunting season. The Mountain States Legal Foundation (Foundation), having sought permission to participate in this case as amicus curiae, endeavored to present new issues in its brief, and we disregard and strike the portion of the brief of the Foundation directed to that end. The decision of the district court of the Ninth Judicial District is affirmed.

The Wyoming Coalition and the other parties appearing as appellants, hereinafter Coalition, articulate the issues in the Brief of Appellants as follows:

I. The Commission's authority under W.S. § 23-1-302 (Supp.1992) is not constrained by any identifiable legislative standards and is therefore violative of the Wyoming Constitution.

II. The district court erred in concluding that W.S. § 23-1-302 (Supp.1992) is a constitutional delegation of authority by the Wyoming legislature.

In the Brief Amicus Curiae of Mountain States Legal Foundation, the issues are said to be:

I. The Wyoming legislature has unconstitutionally abdicated its appropriation authority to the Wyoming Game and Fish Commission.

II. To uphold a delegation of authority, this court must determine that the legislature provided, at a minimum, broad or general standards to guide agency action.

III. The Wyoming legislature has unconstitutionally delegated legislative function to the Wyoming Game and Fish Commission.

A. No standards control the establishment of hunting season.

B. The Commission cannot proscribe conduct because that is a legislative function.

The Commission, in its Brief of Appellee/Respondent sets forth the issues in this way:

I. Whether the legislature properly delegated the authority to set hunting seasons to the Game and Fish Commission.

II. Whether the court should entertain the new issues raised in the amicus brief.

The issue pressed by the Coalition is entirely one of law. Consequently, the relevant facts serve only as a framework for the generation of that legal issue. In May of 1992, the Commission held a hearing to consider a recommendation by the Wyoming Game and Fish Department (Department) to shorten the bull elk hunting season in northwestern Wyoming. The Coalition appeared at the hearing and presented arguments against adopting the recommendation of the Department. The Coalition contended that no sound biological reason supported the recommendations of the Department; the Department should have analyzed the economic impact of its recommendation on the State of Wyoming; and viable alternatives, other than shortening the September hunting season, were available to accomplish the goal of the Department to increase the quality of bull elk hunting. After the hearing, contrary to the arguments of the Coalition, the Commission adopted the recommendation by the Department, and the 1992 season was modified by shortening it.

In July of that year, the Coalition presented to the district court a motion to set aside agency action based on the procedural aspects of the Commission's proceedings. The motion was denied by the district court, and the ruling was not further pursued by the Coalition. Then, in December of 1992, at a time following the actual implementation of the order reducing the hunting season, the Coalition filed a second motion in which it sought to set aside the agency's action by contesting the constitutionality of the delegation of rulemaking authority to the Commission by the Wyoming legislature. The district court denied this motion and entered its Final Order Affirming Administrative Action. This appeal is taken from that order. The Coalition seeks to have this court determine that delegation of rulemaking authority to the Commission is unconstitutional.

The temptation is strong to dismiss this case under our doctrine of mootness. E.g., Mari v. Rawlins Nat'l Bank, 794 P.2d 85 (Wyo.1990); Foster v. Wicklund, 778 P.2d 118 (Wyo.1989); Graham v. Wyoming Peace Officer Standards and Training Comm'n, 737 P.2d 1060 (Wyo.1987); In Interest of AJ, 736 P.2d 721 (Wyo.1987); Gulf Oil Corp. v. Wyoming Oil and Gas Conservation Comm'n, 693 P.2d 227 (Wyo.1985); Walker v. Bd. of County Comm'rs of Albany County, 644 P.2d 772 (Wyo.1982); Northern Utilities, Inc. v. Public Serv. Comm'n of Wyoming, 620 P.2d 139 (Wyo.1980); Northern Utilities, Inc. v. Public Serv. Comm'n, 617 P.2d 1079 (Wyo.1980). The doctrine of mootness is one aspect of the concept of justiciable controversies. Reiman Corp. v. City of Cheyenne, 838 P.2d 1182 (Wyo.1992). The parties have satisfied us, however, that the dispute represented in this case is an ongoing dispute of sufficient public import to justify our decision of the issues. They assure the Court that the issues undoubtedly would arise in the future. Pioneer Nat'l Title Ins. Co. v. Langdon, 626 P.2d 1032 (Wyo.1981); Brimmer v. Thomson, 521 P.2d 574 (Wyo.1974). Consequently, we shall address the issues on the merits.

The statutory basis for judicial review with respect to the adoption of the regulations in question is articulated in the Wyoming Administrative Procedure Act (WAPA), WYO.STAT. § 16-3-101 to -115 (1990 & Supp.1993), stating that the reviewing court shall:

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

* * * * * *

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right; * * *.

WYO.STAT. § 16-3-114(c) (1990).

These parties do not contend in their arguments that the rules promulgated by the Commission were in excess of its statutory jurisdiction, authority or limitations, or lacking statutory right but, instead, the focus is upon whether the degree of delegation is constitutionally permissible. For that reason, we do not consider the sufficiency of the statute to justify the action of the Commission. Since no effort was made to obtain review of the first order entered by the district court attacking the regulations on procedural grounds, we do not further consider that aspect other than to note how it fits into the general framework of constitutional delegation.

In this regard, this case does not call for us to articulate standards of review with respect to the process of promulgating a rule, which is defined as an "agency statement of general applicability that implements, interprets and prescribes law, policy or ordinances of cities and towns * * *." WYO.STAT. § 16-3-101(b)(ix) (1990). The rulemaking process, being prospective in nature and impacting the rights of a large number of individuals, is obviously different from the process relating to contested cases. While some of the principles relating to review of contested cases may be applied in rulemaking proceedings, the nature of such proceedings must be conceded to be substantially different.

In addressing the attack upon the constitutionality of the statutes, we must remember statutes are presumed to be constitutional, and one who challenges a statute on the ground of unconstitutionality must demonstrate the statute is unconstitutional and do so beyond a reasonable doubt. Worden v. Village Homes, 821 P.2d 1291 (Wyo.1991); O'Brien v. State, 711 P.2d 1144 (Wyo.1986); Meyer v. Kendig, 641 P.2d 1235 (Wyo.1982). This court has the duty to maintain the constitutionality of a statute when that is possible, but we cannot deny the balancing duty to declare a statute unconstitutional "if it transgresses the state constitution." Washakie County Sch. Dist. Number One v. Herschler, 606 P.2d 310, 319 (Wyo.1980), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 28 (1980). The burden of proof of unconstitutionality remains with the challenging party.

In several cases, this court has determined that a delegation of authority to an administrative agency was unconstitutional. In State v. Grimshaw, 49 Wyo. 192, 53 P.2d 13 (1936), we decided an agency may not define a standard of conduct pursuant to which an individual might be adjudged a criminal. Next, we concluded the power to revoke a driver's license without reason or cause amounts to an...