dissenting, with whom RAPER, Justice, joins.
I must dissent from the views of the majority in this case. I would vote to affirm the judgment of the district court in all respects. I do not agree that the Board of Equalization has any option about holding a hearing under the clear language of § 39-2-201(d), W.S.1977. The taxpayer is entitled to the hearing, and to have it held promptly. It is subject to levy and collection of taxes based on the assessment within a few months after the assessment. Those entities which will receive the benefits of taxes collected are entitled to have the liability settled so that the taxes will be paid promptly.
My basic disagreement with the views of the majority is a conclusion which I understand to mean that the taxpayer can only challenge the constitutional or statutory validity of the rule in an appeal taken pursuant to the Administrative Procediere Act from the rule-making process. While the taxpayer certainly is entitled to that remedy, it is purely an alternative remedy to the right of the taxpayer to challenge the validity of the rule when the rule is applied to it.
The statutes as applied to electric utilities and other public utilities, § 39-2-201 and § 39-2-206, W.S.1977, make it clear that in this instance the State Board of Equalization serves not only as the entity which identifies the value of property subject to taxation, but in effect it performs the assessment function as well. The hearing provided by § 39-2-201(d), W.S.1977, furnishes the only opportunity for the taxpayer to attack the assessment before the assessor prior to the levy of the tax. This procedure parallels that provided before county boards of equalization pursuant to § 39-2-302, W.S.1977.
I am convinced that at such a hearing the taxpayer is entitled to contest the assessment not only on the basis of an improper application of the assessing method, but the taxpayer, must also be afforded an opportunity to attack the lawfulness of any rule which is applied to accomplish the assessment. When the rule is applied to the taxpayer he should not be foreclosed from an opportunity to challenge the lawfulness of the rule, but his challenge appropriately should extend to both the lawfulness of the rule and the manner in which a lawful rule is applied to him.
The majority opinion cites ITT World Communications, Inc. v. County of Santa Clara, 101 Cal.App.3d 246, 162 Cal.Rptr. 186 (1980), and quotes a part of the language of that opinion. The inference that is left is that the California Court of Appeals would limit the scope of the hearing in an instance such as this. I submit that that is not what the California court did. I call attention to further language from that opinion:
“If the taxpayer challenges in court the validity of the valuation method itself, it must be determined as a question of law whether the challenged method of valuation is arbitrary, in excess of discretion, or in violation of standards prescribed by law. (Bret Harte Inn, Inc. v. City and County of San Francisco, supra [16 Cal.3d 14, 127 Cal.Rptr. 154, 544 P.2d 1354 (1976)], 16 Cal.3d at p. 23, 127 Cal.Rptr. 154, 544 P.2d 1354). Appellants’ primary contention, that the method used by the Board to assess its property was itself illegal because it did not retain the use of RCNLD as a ceiling on value, invokes the latter scope of review. This court must determine whether the abandonment of RCNLD as a ceiling by the Board was arbitrary, in excess of discretion or in *254violation of the standards prescribed by law.” ITT World Communications, Inc., v. County of Santa Clara, 162 Cal.Rptr. at 190.
The California court holds that the review of the application of the assessment method is essentially a review of a question of fact, and thus invokes the usual standards of review relating to matters of fact, which would be decided initially by the Board of Equalization. However, with respect to the lawfulness of the method, the review then, in California, would be a review of the lawfulness of the rule in the context of it being arbitrary, in excess of discretion, or in violation of the standards prescribed by law.
Fairness to both the taxpayer, and the Board of Equalization, dictates that this challenge be first presented to the Board of Equalization. Our holding in Wyoming Bancorporation v. Bonham, Wyo., 527 P.2d 432 (1974), requires that the issue be raised before the Board of Equalization and that the taxpayer place in the record evidence to support its position before the taxpayer can seek judicial review.
I would at this juncture note a difference in the scope of the hearings available before the Board of Equalization with respect to its rule-making powers and with respect to the hearing provided by § 39-2-201(d). The majority opinion correctly identifies the statutory hearing as one invoking the adversary process. It must be considered a contested case governed by the provisions of § 9-4-107, W.S.1977. That is not true of the hearing with respect to the rule-making procedure. I have some very grave concerns about due process if the right of a taxpayer to challenge the lawfulness of a rule as applied to it must depend upon its participation in a hearing in which the adversary process normally would not be invoked, and certainly was not invoked in this instance. We have held in Tri-State Generation and Transmission Association, Inc., v. Environmental Quality Council, Wyo., 590 P.2d 1324 (1979), that the rule-making process does not have to be conducted like a contested case. To much the same effect is U. S. Steel Corporation v. Wyoming Environmental Quality Council, Wyo., 575 P.2d 749 (1978).
I am satisfied that a taxpayer such as Basin Electric Power Cooperative does have alternative remedies in a situation such as this. It can, if it chooses, appeal the rule-making proceeding. It can, as it seeks to do here, attack the method of valuing its property for tax assessment and the application of that method before the State Board of Equalization, the assessing authority. It can seek relief by way of an action presented pursuant to the Uniform Declaratory Judgments Act, §§ 1-37-101 to 1-37-115, W.S.1977. It can, pursuant to § 39-3-203, W.S.1977, bring an action to enjoin an illegal assessment, levy or collection of taxes. While it seems that the taxpayer enjoys a plethora of remedies, it well may be that one remedy would promise a better possibility of success than another.
There may be some inhibitions such as that presented in City of Cheyenne v. Sims, Wyo., 521 P.2d 1347 (1974), in which we held that the declaratory judgment remedy could not be pursued in the absence of exhaustion of administrative remedies. Therefore, the taxpayer here might well have believed that it was necessary to pursue the hearing before the State Board of Equalization before proceeding with an action pursuant to the Uniform Declaratory Judgments Act. In any event, it is clear that the taxpayer in this instance enjoys remedies that it can pursue alternatively, and is not obligated to elect among them, but can pursue any or all of them. That is what it seeks to do, and I support it in that position:,
Finally I am not persuaded that the record here really discloses that in this case Basin was much more upset with the “twenty-percent” rule itself than it was with the rule’s application to its property. An examination of the pertinent portions of Basin’s “Notice of Appeal to Assessment, Written Objections to Assessment, and Allegations of Discriminatory Assessment” which was filed before the Board of Equalization of the State of Wyoming reflects the following:
*255“7. That the 1980 assessment by the Board or Appellant’s Property ignored inflationary trends since 1967 as to all property of the Appellant and was arbitrary, capricious, and was characterized by an abuse of discretion and discriminated against the Appellant as to all of its property under construction as compared with the assessments of the properties of other utilities, industries, commercial establishments, residential home-owners, and other property owners within the State of Wyoming;
“8. That the Board, among other reasons for the adoption of the 1980 assessment rule, stated that the twenty percent (20%) multiplier would maintain a level of revenue to meet the needs of political subdivisions; that the Board is mandated by law to establish and maintain uniformity of assessment of properties within the State of Wyoming and it acted in excess of its powers when it based its action, wholly or partially, on the anticipated revenue needs of political subdivisions in establishing an assessment; and that the Board clearly exceeded its powers in promulgating a rule establishing an assessment on one property owner or one class of property owners to maintain a revenue level to meet purported revenue needs of political subdivisions; * * * ”
The argument of counsel for Basin Electric Power Cooperative before the district court emphasizes that the lawfulness of the rule was only a part of its concern about the assessment. The preponderance of counsel’s remarks related to the issues posed by paragraph seven quoted above.
The Board of Equalization should not be permitted to avoid its statutory obligation on the basis of sophistry. The district court should be affirmed.