Rocky Mountain Oil and Gas Ass'n v. State

645 P.2d 1163, 1982 Wyo. LEXIS 345

• Court: Wyoming Supreme Court
• Decided: June 4, 1982
• Docket: 5517
• Status: Published

Opinions

ROONEY, Justice.

Appellee, The Environmental Quality Council of the State of Wyoming (hereinafter referred to as appellee Council), promulgated certain rules and regulations on September 4,1980, which undertook, among other things, to regulate discharges of commercial, municipal and industrial wastes, including “oil field wastes including water produced with oil and gas,” and including “any discharge to the subsurface.” Such rules and regulations require the obtaining of permits for such discharges. On November 14, 1980, appellants filed an action in the district court seeking (1) a judgment declaring that promulgated rules and regulations were invalid as being beyond and in excess of the powers and jurisdiction of appellees, and (2) an injunction restraining appellees from enforcing the provisions of such rules and regulations. The trial court granted appellees’ amended motion to dismiss the complaint and its causes. In doing so, it found that the doctrine of sovereign immunity precluded the action against ap-pellees, and it based the dismissal upon this ground. It also found that the independent action for declaratory judgment would not lie inasmuch as it was “in the nature of a petition for review” of an administrative action and was not filed within the time allowed for such review. On appeal, appellants present the issue of whether or not the doctrine of sovereign immunity is applicable. And if it is not applicable, appellants present the additional issue of whether or not an action for declaratory judgment is available as an independent action.

We reverse and remand with directions to deny the amended motion to dismiss.

IMMUNITY

Section 30-5-104, W.S.1977, grants to the Wyoming Oil and Gas Conservation Commission the authority and power to regulate all phases of the drilling and operation of oil and gas wells, and disposal wells in connection with oil and gas production. It specifically provides:

“(d) The commission has authority: ******

“(n) To regulate, for conservation purposes:

******

“(D) Disposal of salt water, nonpotable water, and oil-field wastes;”

Subsequent to the enactment of § 30-5-104, the Wyoming Environmental Quality Act, §§ 35-11-101 through 35-11-1207, W.S.1977, Cum.Supp.1981, was enacted. The questioned rules and regulations of ap-pellee Council were promulgated pursuant to the power delegated in such act. Among other things, the declared policy and purpose of the act is “to enable the state to prevent, reduce and eliminate pollution,” § 35-11-102, W.S.1977. See Tri-State Generation and Transmission Association, Inc. v. Environmental Quality Council, Wyo., 590 P.2d 1324 (1979). Section 35-ll-103(c) of the act provides in pertinent part:

“(c) Specific definitions applying to water quality:

“(i) ‘Pollution’ means contamination or other alteration of the physical, chemical or biological properties of any waters of the state, including change in temperature, taste, color, turbidity or odor of the waters or any discharge of any acid or toxic material, chemical or chemical compound, whether it be liquid, gaseous, solid, radioactive or other substance, including wastes, into any waters of the state which creates a nuisance or renders any waters harmful, detrimental or injurious to public health, safety or welfare, to domestic, commercial, industrial, agricultural, recreational or other legitimate beneficial uses, or to livestock, wildlife or aquatic life, or which degrades the water for its intended use, or adversely affects the environment. This term does not mean water, gas or other material which is injected into a well to facilitate production of oil, or gas or water, derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the state, and if the state determines that such injection or disposal well will not result in the degradation of ground or surface or water resources.” (Emphasis added.)

Appellants contend that, by its rules and regulations, appellee Council is attempting to do that which the Wyoming Oil and Gas Conservation Commission has been authorized to do and which the legislature has excepted from the powers of the Council. This issue is not before us on this appeal.¹ The only issue before us is whether or not the district court is precluded from reaching the question on the merits concerning the relative powers of the two state agencies because of the doctrine of sovereign immunity.

The majority rule is that generally the state may not be subject to a declaratory judgment action as a defendant because of the doctrine of sovereign immunity. 22 Am.Jur.2d Declaratory Judgments, § 85. Yet it is said as a general proposition:

“Declaratory judgment proceedings have been considered particularly useful in determining the rights of the individual visa-vis public authorities and administrative agencies. A judicial determination as to the power of public regulatory agencies and the validity of their rules and regulations enables the private individual to avoid uncertainty as to his rights and duties and to avoid the risks of civil and criminal liability without requiring him to use the more cumbersome writs of certiorari, mandamus, quo war-ranto, or prohibition. * * * ” 22 Am. Jur.2d Declaratory Judgments, § 31, p. 880.

When a money judgment is not involved, when the only issue is one of construction or validity of a statute or constitutional provision, there would seem to be no reason to preclude a declaratory judgment on the basis of sovereign immunity in an action in which the state, its agencies, or its officers are defendants.² At common law, the root for the sovereign immunity defense was the tenet that the “King can do no wrong.” The basis for the doctrine is now said to be a “social policy, which protects the state from burdensome interference with the performance of its governmental functions and preserves its control over state funds, property and instrumentalities.” 72 Am.Jur.2d States, Territories, and Dependencies, § 99, p. 491. When the question, as here, has nothing to do with whether or not the King is doing wrong, or whether or not the governmental function should be performed, but rather when it has to do with which arm of the King is doing the right, or which voice of the state is directing the governmental function, acknowledged to be proper, it would seem that sovereign immunity is not involved. In this instance, the issue is: Which of two state agencies can properly make rules and decisions in the exercise of a specific police power? To contend that the question should not be answered in a declaratory judgment action is without reason.

Appellees refer to Retail Clerks Local 187 v. University of Wyoming, Wyo., 531 P.2d 884 (1975), as holding that a declaratory judgment action will not lie against the state or its agencies under any circumstances on the ground of sovereign immunity. However, that action was for injunction and damages in addition to one for declaratory judgment. Because there was involved a money judgment and because the only issue was not one of construction or validity of a statute or constitutional provision, the rational and proper rule, supra, would not apply.³

In any event, subsequent legislation has changed the status of the doctrine of sovereign immunity. The state has fortified its waiver of immunity in declaratory judgment actions. The Wyoming Governmental Claims Act (§§ 1-39-101 through 1-39-119, W.S.1977, Cum.Supp.1981)⁴ waives sovereign immunity for various actions grounded in tort and contract. It would be incongruous to preclude a declaratory judgment action on the basis of sovereign immunity if such action pertained to the tort and contract actions for which immunity is waived.

It is also inconsistent to recognize a waiver of immunity in declaratory judgment cases which also pertain to a money judgment on a tort or contract action, but not to recognize such waiver in cases, such as this one, wherein the potential for interference with governmental functions and control over state funds is much less, i.e., in cases wherein the only object is to obtain a determination of “rights, status and other legal relations.”

Based on (1) the waiver of immunity as reflected in the Wyoming Governmental Claims Act, and (2) common-sense application of the purpose and intent expressed in the Declaratory Judgments Act, the state, its agencies and its officers may not raise the defense of sovereign immunity to actions under the Declaratory Judgments Act; provided that if such actions also concern those contract and tort claims which are subject of the Wyoming Governmental Claims Act, the procedural aspects of that act must be met.

The defense of sovereign immunity cannot be raised by any of the parties to this action because the only purpose of the action is to obtain a determination of the “rights, status and other legal relations” of appellants resulting from, or to result from, rules and decisions on the same matter by two separate state agencies, and because immunity has been waived.

AVAILABILITY OF DECLARATORY JUDGMENT ACTION

Although not made a ground for its holding, the district court found that the independent action for declaratory judgment would not lie in this case inasmuch as it was “in the nature of a petition for review” of administrative action and was not filed within the time allowed for such review. It is proper for the supreme court to decide incidental questions which are bound to arise again in the case. Chicago & N. W. Ry. Co. v. City of Riverton, on reh., 70 Wyo. 119, 247 P.2d 660 (1952); and Madison v. Marlatt, Wyo., 619 P.2d 708 (1980).

“The relief, review, or redress available in suits for injunction against agency action or enforcement thereof, in actions for recovery of money, in actions for a declaratory judgment of rights, status, or legal relations based on administrative action or inaction, in actions for mandamus to compel administrative action, and in applications for writs of certiorari and prohibition to review or prevent administrative action shall be available by independent action notwithstanding any petition for review filed.” (Emphasis added.) Rule 12.12, W.R.A.P.

“Courts of record within their respective jurisdictions may declare rights, status and other legal relations whether or not further relief is or could be claimed. No proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for. * * * ” (Emphasis added.) Section 1-37-102, W.S.1977.

“The Uniform Declaratory Judgments Act is remedial. Its purpose is to settle and afford relief from uncertainty and insecurity with respect to legal relations, and is to be liberally construed and administered.” (Emphasis added.) Section 1-37-114, W.S.1977.

The majority of states applying the Uniform Declaratory Judgments Act hold that a proceeding under it may be maintained even though another remedy is available. See, e.g., Neal v. Brockway, 136 Vt. 119, 385 A.2d 1069 (1978); Baugher v. Walker, 47 Ill.App.3d 573, 5 Ill.Dec. 939, 362 N.E.2d 410 (1977); Schriber Sheet Metal & Roofers v. Shook, 64 Ohio App. 276, 28 N.E.2d 699 (1940); Katz Inv. Co. v. Lynch, 242 Iowa 640, 47 N.W.2d 800 (1951); and Friestad v. Travelers Indemnity Company, 452 Pa. 417, 306 A.2d 295 (1973). However, some states will not grant declaratory judgment relief if another adequate remedy is available. See, e.g., King County v. Boeing Company, 18 Wash.App. 595, 570 P.2d 713 (1977); State ex rel. Miller v. McLeod, Mo.App., 605 S.W.2d 160 (1980); Mascarin Professional Pharmacy v. Hart, 13 Cal.App.3d 462, 91 Cal.Rptr. 560 (1970). And see Anderson v. Wyoming Development Co., 60 Wyo. 417, 154 P.2d 318 (1944).

“While the Uniform Declaratory Judgments Act does not provide in specific terms, as do the Federal Rules, that the existence of other adequate remedies shall not bar declaratory relief, the state courts generally rely on the provisions of the Uniform Act or similar state statutes which state that declaratory relief may be granted ‘whether or not further relief is or could be claimed,’ and that the act ‘is to be liberally construed and administered,’ in holding that the right to declaratory relief is not barred by the existence of another adequate remedy. It has been noted that the alternative remedy available, such as damages, injunctive relief, and the like, may be harsher than the declaratory relief sought, and that if the plaintiff seeks declaratory relief the court is not required to compel him to seek a more stringent remedy. * * * ” 22 Am. Jur.2d Declaratory Judgments, § 14, pp. 853-854.

Rule 57, W.R.C.P., is similar to the federal rule referred to in the Am.Jur. quotation. The pertinent portion of it (second sentence) is identical to the federal rule:

“The procedure for obtaining a declaratory judgment pursuant to section 3-5801 to 3-5816 inclusive of W.C.S. 1945 [§§ 1-37-101 to 1-37-115], shall be in accordance with these rules, and the right to trial by jury may be demanded under the circumstances and in the manner provided in Rules 38 and 39. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar.” (Emphasis added.)

The directions are clear. In Wyoming, the existence of another adequate remedy will not, of itself, preclude declaratory judgment relief. We cannot relegate such relief to the position of an extraordinary, as opposed to an optional, remedy.

Of course, there must be a justicia-ble controversy, and the procedure cannot be used to secure an advisory opinion in a matter in which there is no justiciable controversy. Anderson v. Wyoming Development Co., supra; Mountain West Farm Bureau Mutual Insurance Company v. Hallmark Insurance Company, Wyo., 561 P.2d 706 (1977); Brimmer v. Thomson, Wyo., 521 P.2d 574 (1974); and Aetna Casualty and Surety Company v. Langdon, Wyo., 624 P.2d 240 (1981). The declaratory judgment action is not proper where it will not terminate the controversy. Wyoming Humane Society v. Port, Wyo., 404 P.2d 834 (1965).

In this case, giving or refusing the relief prayed for in the complaint will terminate the controversy or uncertainty. And a jus-ticiable controversy exists. The appellee Council’s rules and regulations necessitate immediate and present action by appellants. They require the application for, and the securing of, permits for disposal of the water resulting from oil well activity. Failure to obtain the permits could not only result in heavy penalties, but could entail considerable expenditure of time and money in establishing the conditions necessary for obtaining such permits. As stated by appellants in their complaint:

“ * * * [Tjhey would be required to obtain duplicate and and [sic] unnecessary permits at great costs, expense and inconvenience together with expensive delays * * * »

Giving or refusing the relief requested in the complaint will have final force and effect upon the rights, status and legal relationship of the parties. Cranston v. Thomson, Wyo., 530 P.2d 726 (1975).

However, the added element which may be considered in cases such as this is the status of a declaratory judgment action filed in a court which is an appellate court for the same issue presented, or able to be presented, below. Here the declaratory judgment action was filed in the district court. The district court is designated the appellate court for judicial review of administrative actions.

Ordinarily, a declaratory judgment action is not a substitute for an appeal. School Districts Nos. 2, 3, 6, 9, and 10, Campbell County v. Cook, Wyo., 424 P.2d 751 (1967); Stahl v. Wilson, Fla.App., 121 So.2d 662 (1960); Sparks v. Brock & Blevins, Inc., 274 Ala. 147, 145 So.2d 844 (1962); and Bryarly v. State, 232 Ind. 47, 111 N.E.2d 277 (1953). But such direct action is often available “even though there was a statutory method of appeal,” School Districts Nos. 2, 3, 6, 9 and 10, Campbell County v. Cook, supra, 424 P.2d at 755. Here, there is no appeal actually pending and the issues are not moot.

However, there is a restriction on the availability of a declaratory judgment action with reference to its applicability to administrative matters. Where the action would result in a prejudging of issues that should be decided in the first instance by an administrative body, it should not lie. This is because, if it be otherwise, all decisions by the several agencies could be bypassed, and the district court would be administering the activities of the executive branch of the government. Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291 (1952); and City of Cheyenne v. Sims, Wyo., 521 P.2d 1347 (1974). This restriction on the scope of declaratory judgments is akin to the requirement that administrative remedies must be exhausted before judicial relief is available.

Accordingly, where the relief desired is in the nature of a substitution of judicial decision for that of the agency on issues pertaining to the administration of the subject matter for which the agency was created, the action should not be entertained. If, however, such desired relief concerns the validity and construction of agency regulations, or if it concerns the constitutionality or interpretation of a statute upon which the administrative action is, or is to be, based, the action should be entertained. This is no more than that obviously and plainly provided for in the language of the Uniform Declaratory Judgments Act.

In this case, the jurisdiction and extent of the powers of the two agencies are questioned as they relate to each other. The court is not requested to make administrative decisions necessary to carry out the purpose of the respective agencies. The issues presented to the court have to do with the legal relations of the parties. Appellants are entitled to know with which of the agencies they are to consult and negotiate on matters of important business activities. They are entitled to know under which agency regulations they must operate. The declaratory judgment action properly lies to “settle and afford relief” with reference to these “rights, status and other legal relations.”

Inasmuch as a declaratory judgment action is available to appellees as an independent action, separate and apart from a petition for review, the time in which a petition for review must be filed is immaterial.

Reversed and remanded with directions to deny the amended motion to dismiss.

1 . Of interest are provisions in the act relative to the coordination between the Department of Environmental Quality and other state agencies. “ * * * [I]t is hereby declared to be the policy and purpose of this act to * * * secure cooperation between agencies of the state * * § 35-11-102, W.S.1977. “ * * * [T]he director of the department shall: * * * (ii) Advise, consult and cooperate with other agencies of the state * * *,” § 35-11-109, W.S.1977.

2 . Section 1-37-103, W.S.1977, provides:

“Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by the Wyoming constitution or by a statute, municipal ordinance, contract or franchise, may have any question of construction or validity arising under the instrument determined and obtain a declaration of rights, status or other legal relations.”

3 . In Retail Clerks Local 187 v. University of Wyoming, supra, 531 P.2d 884, we also failed to address the issue presented and argued at length relative to the duty, power and authority of the University, its Board of Trustees, individually, and in their official capacities to do, or not do, the things about which complaint was there made.

4 . The Wyoming Governmental Claims Act became effective July 1, 1979. The original complaint was filed in this case on November 14, 1980, and the order of dismissal was entered on April 21, 1981. The questioned rules and regulations of the Department of Environmental Quality were effective September 4, 1980.