specially concurring.
€60 I write separately because I think plaintiffs lack standing in this case. Plaintiffs seek an injunction requiring the Governor to withdraw his request to opt out of the physician supervision requirement of the Social Security Act and preventing the Governor from requesting an opt-out in the future. Since plaintiffs have not alleged injuries to any legally protected interests so as to give them a claim for relief, I think the prudential doctrine of standing should apply to forestall examination of the merits of this case.
T61 Standing is a "threshold issue that must be satisfied in order to decide a case on the merits." Ainscough v. Owens, 90 P.3d 851, 855 (Colo.2004). "If the plaintiff does not have standing, the case must be dismissed." Hotaling v. Hickenlooper, 275 P.3d 723, 725 (Colo.App.2011) (citing State Bd. for Cmty. Colls. v. Olson, 687 P.2d 429, 435 (Colo.1984)).
162 To establish standing, a plaintiff in Colorado must have suffered an "injury-in-fact" to a "legally protected interest." Wimberly v. Eittenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977).
T 63 In my view plaintiffs have established neither that they suffered an injury-in-fact nor that any interests that they allege have been injured by the Governor's actions were legally protected.
I. Injury-in-Fact
T 64 I think plaintiffs have not established that they have suffered an injury-in-fact because their claimed injuries (specifically, injuries to their interests in their medical licenses, their reputations, and public health) are indirect and incidental to the Governor's actions.
T65 The purpose of the "injury-in-fact" prong of standing is "to maintain the separation of powers of state government, and to prevent the courts from assuming the powers of another branch by deciding something that is not the result of an actual case or controversy." Freedom from Religion Found., Inc. v. Hickenlooper, 2012 COA 81, ¶ 45, - P.3d -, -. An injury-in-fact "is conveyed by neither the remote possibility of a future injury nor an injury that is overly "indirect and incidental to the defendant's action." Ainscough, 90 P.8d at 856.
TI 66 I note that the Governor's opt-out has no bearing on the legal standards governing who may administer anesthesia or under what circumstances anesthesia may be administered. These standards are defined by Colorado law. Seq, e.g., §§ 12-38-101 to - 133, C.R.S.2011 (Colorado's Nurse Practice Act). Hence, plaintiffs cannot claim that their medical licenses, their reputations, or public health have in some way been diminished; Colorado law regarding the practice of medicine is not changed by the Governor's funding decision.
T67 Further, I think any possible confusion or misunderstanding in the medical profession caused by the Governor's opt-out is indirect and incidental to the Governor's actions. Ainscough, 90 P.3d at 856.
II. Legally Protected Interests
¶ 68 I also think plaintiffs have not established that their interests allegedly injured by the Governor's actions are legally protect*406ed so as to afford them a claim for relief in this case.
{ 69 Whether a plaintiff has a legally protected interest for standing purposes is "a question of whether the plaintiff has a claim for relief under the constitution, the common law, a statute, or a rule or regulation." Ainscough, 90 P.3d at 856 (citing Bd. of Cnty. Comm'rs v. Bowen/Edwards Assocs., Inc., 830 P.2d 1045, 1053 (Colo.1992)). Moreover, "the interest sought to be protected by the complainant" must arguably be "within the zone of interests to be protected" by the rule of law in question. Friends of Black Forest Reg'l Park, Inc. v. Bd. of Cnty. Comm'rs, 80 P.3d 871, 877 (Colo.App.2008) (quoting Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 492, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998)).
170 On this point, I note first that plaintiffs have identified no constitutional provision, common law, or statute, either state or federal, which would give them a claim for relief in the cireumstances of this case. See Ainscough, 90 P.3d at 856; see also Conrad v. City & Cnty. of Denver, 656 P.2d 662, 668-69 (Colo.1982)(taxpayer's interest in preventing the government from showing religious preference was legally protected when it was secured by the Religious Preference Clause of the Colorado Constitution).
71 Plaintiffs' only cognizable claim is that the Governor's actions were somehow inconsistent with 42 C.F.R. § 416.42(c)(1), a federal regulation setting out the procedure for opting out of the physician supervision requirement. Plaintiffs, however, have presented no argument as to how this federal regulation was actually violated or was intended to protect their interests.
¶ 72 42 C.F.R. § 416.42(c)(1) states as follows:
[A State) may be exempted from the requirement for physician supervision of CRNAs ... if the State ... submits a letter to [the Centers for Medicare and Medicaid Services] signed by the Governor, following consultation with the State's Boards of Medicine and Nursing, requesting exemption from physician supervision of CRNAs. The letter from the Governor must attest that he or she has consulted with State Boards of Medicine and Nursing about issues related to access to and the quality of anesthesia services in the State and has concluded that it is in the best interests of the State's citizens to opt-out of the current physician supervision requirement, and that the opt-out is consistent with State law.
T 73 I think the plain meaning of the federal regulation requires that, to opt-out, the Governor need only attest that (1) he has consulted with the appropriate boards and (2) he has "concluded" that the opt-out is in the best interests of Colorado's citizens and consistent with Colorado law. See USA Tax Law Center, Inc. v. Office Warehouse Wholesale, LLC, 160 P.3d 428, 431 (Colo.App.2007)("[W]e interpret federal regulations in a manner that gives them effect according to their plain meaning.") (citing Time Warner Entm't Co. v. Everest Midwest Licensee, L.L.C., 381 F.3d 1039 (10th Cir.2004)). Because this regulation only requires the Governor to attest that he has concluded that the criteria for opting out have been met, I think it gives the Governor the sole discretion to determine whether the opt-out is in the best interests of Colorado's citizens and consistent with Colorado law.
T 74 Considering that it is uncontested that the Governor consulted with the appropriate boards and thereafter concluded that the opt-out was in the best interests of Colorado's citizens and consistent with Colorado law, I think any argument by plaintiffs that the Governor has actually violated this regulation would be a mere pretense for challenging the Governor's exercise of discretion and, thus, should not confer standing. See Conrad, 656 P.2d at 668.
¶ 75 Further, even if plaintiffs assert that the Governor actually violated 42 C.F.R. § 416.42(c)(1), there is nothing to suggest that this regulation was intended to protect plaintiffs' interests, see Friends of Black Forest, 80 P.3d at 877, by affording them a private claim for relief. See USA Tax Law Center, 160 P.3d at 430 ("[The fact that a federal statute has been violated and some person harmed does not automatically give rise to a private cause of action in favor of *407that person.") (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)). " 'Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress." " Id. (quoting Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001)). And, "[albsent statutory intent to create a private right of action, 'courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.'" Id. (quoting Alexander, 532 U.S. at 286-87, 121 S.Ct. 1511).
176 Plaintiffs have presented us with no analysis suggesting that 42 C.F.R. § 416.42(c)(1), a procedural regulation concerning funding under the Social Security Act, was intended to protect their interests by giving them a claim for relief. The regulation itself does not indicate that it was intended to afford anyone a private right of action, and nothing in the record suggests that it was. Hence, although plaintiffs claim injuries to their interests in their medical licenses, their reputations, and public health, they have not established that 42 C.F.R. § 416.42(c)(1), or any other rule of law, protects these interests in this case. See Ainscough, 90 P.3d at 856.
77 Finally, in my view, this case is before us simply because plaintiffs do not like the funding decision made by the Governor, but that is a decision that lies solely with the Governor under 42 C.F.R. § 416.42(c)(1). This case therefore stands as a prime example of the continuing relevance of the standing doctrine in ensuring the separation of powers by preventing the judiciary from usurping powers vested in the executive branch, see Conrad, 656 P.2d at 668, and I think that, if the standing doctrine is to have any force in Colorado, it must bar us from reaching the merits of cases such as this one.