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Director of the Office of State Lands & Investments v. Merbanco6/6/2003
concur with the standing analysis employed in Branson School District RE-82 v. Romer, 958 F. Supp. 1501, 1509-11 (D. Colo. 1997), which concluded similar plaintiffs had standing to challenge a constitutional amendment affecting the administration of the permanent school fund in Colorado.
With regard to Merbanco's standing, a different problem is presented. The state had no obligation to either sell or exchange the Teton Village school section. Consequently, Merbanco had no legally recognizable right to bid on the property. Furthermore, the public auction requirement was intended to protect interests of the permanent school fund and those who would benefit from it, not those who may seek to purchase school lands. We have consistently held that standing requires a legally protectable, tangible interest to be at stake. Gooden v. State, 711 P.2d 405 (Wyo. 1985) (defendant had no right to plea bargain and thus no right to claim statute imposing andatory sentence for DUI violated constitutional separation of powers); Cremer v. State Board of Control, 675 P.2d 250, 254 (Wyo. 1984) (senior water right holder had no standing to seek abandonment of junior right); see also Budd v. Bishop, 543 P.2d 368 (Wyo. 1975); Cuthbertson v. Union Pacific Coal Co., 50 Wyo. 441, 62 P.2d 311 (1936). Merbanco had no legally protected interest entitling it to bid on school lands and thus had no standing to challenge the statutes allowing the state to exchange lands without public auction.
The Colorado Supreme Court faced a similar situation in Brotman v. East Lake Creek Ranch, L.L.P., 31 P.3d 886 (Colo. 2001), where a former lessee of school lands challenged a proposed exchange between the state and a third party, claiming the exchange constituted a sale and the state had not followed the statutory requirements for a sale. Colorado's test for standing is similar to ours: "A plaintiff has standing if he or she (1) incurred an injury-infact (2) to a legally protected interest, as contemplated by statutory or constitutional provisions." 31 P.3d at 890; see also Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977). The lessee claimed he was injured because of the potential that, if the school lands were owned privately, the lessee would be subject to condemnation for a right of way across his lands to the private section. The Colorado court found such "injury" was speculative and, even if it occurred, the lessee would not have a legally protected right to prevent a condemnation if just compensation were paid. Brotman, 31 P.3d at 891. Our conclusion regarding Merbanco's lack of standing is consistent with the Colorado court's reasoning.
Having found three of the four challengers have standing, we must determine whether the controversy at issue is one upon which a judgment of the court may effectively operate, as distinguished from a debate or argument evoking a purely political, administrative, philosophical, or academic conclusion and upon which a judicial determination will have the effect of a final judgment. The state complains the lack of final action by the state renders the argument hypothetical. As stated above, we have consistently refused to require final agency action as a condition precedent to a declaratory judgment action concerning the underlying authority of the agency to act, especially when matters of constitutionality are at issue. Wyoming Community College Commission v. Casper Community College District, State of Wyoming, 2001 WY 86, 31 P.3d 1242 (Wyo. 2001); Rocky Mountain Oil and Gas Association, 645 P.2d 1163. Certainly, a judicial determination of the constitutional propriety of exchanges of state lands without a public auction will provide clear rules for the future administration of sta
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