dissenting.
I dissent. I cannot agree with the majority opinion’s conclusion that the district court lacked jurisdiction to hear this appeal. I believe the majority opinion confuses the jurisdiction of the district court to entertain this appeal with the jurisdiction of the ap-pellee to act as it did in this case.
The majority opinion discusses the scope of appellee’s statutory jurisdiction, the danger of allowing the contracting agency to adjudicate disputes over the amount due under a contract, and the fact that the contract procedure is not a “contested case” as that term is defined by § 9 — 4—101(b)(ii), W.S.1977, Cum.Supp. 1982, supra (in majority opinion). The majority opinion then concludes:
“ We can find no statutory authority for the appellee to conduct a hearing and make findings, conclusions of law, and a decision in a dispute between itself and one of its contractors, which is reviewable by the district court on a petition for review. * * * ” (Emphasis added.)
However, the issue is not whether the ap-pellee has statutory authority to render a decision in this case but rather whether the district court has statutory authority to review appellee’s decision in this case.
In United States Steel Corporation v. Wyoming Environmental Quality Council, Wyo., 575 P.2d 749 (1978), we recognized that the right to judicial review of administrative decisions is statutory and that review is not available unless made so by statute. We also recognized that there must be a clear intent expressed by the legislature to preclude judicial review otherwise available, quoting at length from Klein v. Fair Employment Practices Commission, 31 Ill.App.3d 473, 334 N.E.2d 370, 374 (1975), as follows:
“ ‘Each statute must be carefully examined to discover the legislature’s intent to restrict judicial review of administrative action. (Heikkila v. Barber (1953), 345 U.S. 229, 73 S.Ct. 603, 97 L.Ed. 972.) While it is often said that barring constitutional impediments the legislature can preclude judicial review (See Mount St. Mary’s Hosp. v. Catherwood (1970), 26 N.Y.2d 493, 511, 518-519, 311 N.Y.S.2d 863, 260 N.E.2d 508 (Fuld, C.J., Concurring)), such intent must be made specifically manifest, and persuasive reason must exist to believe such was the legislative purpose. (Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681.) Only upon a showing of clear and convincing evidence of contrary legislative intent should the courts restrict access to judicial review. Rusk v. Cort (1962), 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809.’” United States Steel Corporation, supra, 575 P.2d at 750.
The majority opinion fails to point out any clear and convincing evidence of a legislative intent to preclude judicial review of this case. Conspicuously absent from the majority opinion is any direct reference to the section of the Wyoming Administrative Procedure Act authorizing judicial review of administrative actions, § 9-4-114(a), W.S.1977. This section provides in pertinent part:
“(a) Subject to the requirement that administrative remedies be exhausted and in the absence of any statutory or common-law provision precluding or limiting judicial review, any person aggrieved or adversely affected in fact by a final decision of an agency in a contested case, or by other agency action or inaction, or any person affected in fact by a rule adopted by an agency, is entitled to judicial review in the district court * * (Emphasis added.)
It is to this section that the court must turn to determine whether or not the district court had authority to entertain the petition for review and not to the statutory authority of appellee to act as it did in this ease.
The fact that this is not a “contested case” does not preclude judicial review. Section 9-4-114(a), supra, provides that any person aggrieved by “agency action or inaction” is entitled to judicial review in a district court irrespective of whether or not the agency action falls within the definition of a “contested case.” Diefenderfer v. Budd, Wyo., 563 P.2d 1355, 1359-1360 *270(1977); Johnson v. Schrader, Wyo., 502 P.2d 371, 376 (1972); Thornley v. Wyoming Highway Department, Motor Vehicle Division, Wyo., 478 P.2d 600, 603 (1971); Rule 12.01, W.R.A.P.; and see: Wyoming State Department of Education v. Barber, Wyo., 649 P.2d 681 (1982); Rissler & McMurry Company v. Wyoming Highway Department, Wyo., 582 P.2d 583 (1978).
This case is somewhat complicated by the fact that “agency action” has not been defined by statute1 or judicial decision in Wyoming. Federal courts have been reluctant to define “agency action,” preferring to examine agency decisions on a case-by-case basis. 5 Mezines, Stein, Gruff, Administrative Law, § 43.01, p. 43-4. We have taken the same approach. See: Thornley, supra; Diefenderfer, supra; and Rissler & McMurry, supra.
In determining whether § 9-4-114(a), supra, confers upon the district court the authority to review the denial of a contract claim presented to the appellee pursuant to a contract dispute clause, i.e., contract Part VII (see majority opinion), the preference for judicial review expressed in United States Steel Corporation, supra, and the rules of statutory construction must be kept in mind. In construing statutes the following principles govern:
“ * * * First off, it is a well-established principle that in construing a legislative enactment we must, if possible, ascertain the intent of the legislature from the wording of the statute. We are not, however, permitted to assign meaning to a statute which would have the effect of nullifying its operation. In the Matter of the Injury to Hasser, Wyo., 647 P.2d 66 (1982); McGuire v. McGuire, Wyo., 608 P.2d 1278, 1285 (1980). Also, words utilized in the statute are to be given their plain and ordinary meaning unless otherwise indicated. Board of County Commissioners of the County of Campbell v. Ridenour, Wyo., 623 P.2d 1174, 1184 (1981); Jahn v. Burns, Wyo., 593 P.2d 828, 830 (1979). Similarly, it is well settled that general principles of statutory construction calculated to assist the court in ascertaining legislative intent are not resorted to unless it can be said that the statute is ambiguous. Sanches v. Sanches, Wyo., 626 P.2d 61, 62 (1981); Matter of North Laramie Land Co., Wyo., 605 P.2d 367, 373 (1980).” Wyoming State Department of Education v. Barber, supra, 649 P.2d at 684-685.
Although based upon the Uniform Law Commissioners’ Revised Model State Administrative Procedure Act (1961), (hereinafter Model Act), Scarlett v. Town Council, Town of Jackson, Teton County, Wyo., 463 P.2d 26, 28 (1969), § 9-4-114(a), supra, substantially departs from the Model Act’s review provisions2 by providing for review of “agency action or inaction” in addition to decisions in “contested cases.”
It has been recognized that “agency action” has an “all-embracive meaning” absent a limiting statutory definition. Hearst Radio v. Federal Communications Commission, 167 F.2d 225, 227 (D.C.Cir.1948). The use of “agency action or inaction” by the legislature evidences its recognition that an agency’s informal actions should be subject to judicial review. As noted in the Commissioners’ Comment on the definition of “agency action” in the Model State Administrative Procedure Act (1981) (see fn. 1, supra):
“ * * * The principal effect of the very broad definition of ‘agency action’ is that everything an agency does or does not do is subject to judicial review. * * * ” 14 U.L.A., Model State Administrative Procedure Act (1981), Comment to § 1-102, p. 41 (1981 P.P.).
The same effect was given § 9-4-114(a), supra, by including the term “agency action or inaction” without a limiting definition.
Limiting judicial review to “contested cases” or to administrative actions clearly *271authorized by statute as suggested by the majority opinion nullifies the operation of § 9-4-114(a). The majority opinion effectively strikes “agency action or inaction” from that section. This cannot be done. Wyoming State Department of Education v. Barber, supra. Nor is it required by our prior case law.
In Diefenderfer v. Budd, supra, two physical education instructors applied for transfers to the same position. After one was assigned to the position, the other filed a grievance pursuant to the contract between the board of education and the teachers’ association. After exhaustion of the grievance procedure, a petition for review was filed pursuant to § 9-4-114(a), supra. The court noted that the subject matter of the appeal was not a “contested case” but rather a grievance covered by the contract and concluded that the “agency action” language of § 9-4-114(a), supra, authorized judicial review.
In Rissler & McMurry Company v., Wyoming Highway Department, supra, Rissler & McMurry appealed from a decision of the highway department3 denying its claim for additional compensation under a construction contract. The district court dismissed the appeal based on the theory that the claim was not filed timely pursuant to § 9-2-332, W.S.1977, Cum.Supp.1982; the supreme court reversed, addressing the substantive question of whether or not there was substantial compliance with § 9-2-332. Implicit in the court’s decision is the cqnelusion that the district court, and therefore the supreme court, had jurisdiction to entertain the appeal pursuant to § 9-4-114(a), supra.
The present case cannot be distinguished from either of the foregoing cases. In both Diefenderfer, supra, and Rissler & McMur-ry Co., supra, the appeal was from an agency decision made pursuant to a contract. The fact that the proceedings were referred to as a “grievance,” “negotiations” or “settlement negotiations” does not change the fact that the court exercised its appellate jurisdiction in deciding the cases.
The majority opinion expresses concern that there is no statutory authority for the appellee to render a decision in a dispute between itself and a contractor.4 This may be a valid concern, but it is one properly addressed on appeal from the agency decision. Section 9-4-114(c)(ii), W.S.1977, ' Cum.Supp. 1982, provides that the reviewing court shall:
“(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
“(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
“(B) Contrary to constitutional right, power, privilege or immunity;
“(C) In excess of statutory jurisdiction, authority or limitations, or lacking statutory right;
“(D) Without observance of procedure required by law; or
“(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.”
The issue of the agency’s statutory jurisdiction is a proper ground for holding unlawful and setting aside agency action pursuant to this section. It is not a proper ground for determining that the courts do not have jurisdiction over an appeal.
“[I]n the absence of any statutory or common-law provision precluding or limiting judicial review,” § 9 — 4-114(a), supra, the district court, and therefore the supreme court, has jurisdiction to entertain this appeal. The majority opinion suggests that the proper procedure for appellant to follow is to file an action in the district court as authorized by § 24-2-101(e), W.S. 1977, Cum.Supp.1982. However, that section contains no prohibition against judicial review pursuant to the Wyoming Adminis*272trative Procedure Act. Rather, it is a waiver of sovereign immunity.
Art. 1, § 8, of the Wyoming Constitution provides in pertinent part:
“ * * * Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.” (Emphasis added.)
The Wyoming Administrative Procedure Act authorizes the appeal of agency decisions. The Wyoming Governmental Claims Act, § 1-39-101, et seq., W.S.1977, authorizes civil actions against the state. Prior to its amendment in 1980, it applied only to tort actions. As amended it also applies to contract actions.5 It supersedes the waiver of sovereign immunity contained in § 24-2-101(e), supra; § l-39-116(a), W.S.1977, Cum.Supp.1982.
Applying § l-39-104(a), to the contract in this case and particularly to Part VII, immunity was waived only to the extent of providing a hearing before the appellee, and presumably, only for administrative review of the agency action pursuant to the Wyoming Administrative Procedure Act. It is conceivable that an agency would be able to make its decision final and conclusive in a contract dispute and thereby eliminate any recourse to the courts under the majority opinion’s holding.
However, I question that the legislature can delegate the authority to waive sovereign immunity, let alone the extent of such waiver, to an administrative agency for exercise in drafting a contract. As stated in Worthington v. State, Wyo., 598 P.2d 796, 801 (1979):
“There are few, if any, precedents or rules that have been recognized longer or followed with greater fidelity than the rule that was set out in the case of Hjorth Royalty Company v. Trustees of University, 30 Wyo. 309, 222 P. 9 (1924),
which held that Art. 1, § 8, Wyoming Constitution, is not self-executing; that no suit can be maintained against the State until the legislature makes provision for such filing; and, that absent such consent, no suit or claim could be made against the State. * * * ” (Emphasis added.)
The legislature is empowered by the constitution to waive sovereign immunity, not administrative agencies. To the extent that § l-39-104(a), supra, fn. 5, grants that power to administrative agencies, it is unconstitutional.
I would hold that the district court, and therefore the supreme court, has jurisdiction over this appeal pursuant to § 9-4-, 114(a), supra, and would address the substantive issues raised thereby.
. The Federal Administrative Procedure Act defines “agency action” as follows:
“(13) ‘agency action’ includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act;” 5 U.S.C. § 551(13).
The Model State Administrative Procedure Act (1961) does not define “agency action.” The *270Model State Administrative Procedure Act (1981) defines “agency action” as follows:
“(2) ‘Agency action’ means:
“(i) the whole or a part of a rule or an order;
“(ii) the failure to issue a rule or an order; or
“(iii) an agency’s performance of, or failure to perform, any other duty, function, or activity, discretionary or otherwise.” 14 U.L.A., Model State Administrative Procedure Act (1981) § 1-102(2) (1981 P.P.).
. Section 15, Model State Administrative Procedure Act (1961), provides in pertinent part:
“(a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this Act. * * * ” 14 U.L.A., Model State Administrative Procedure Act (1961), § 15, p. 429.
. While not addressed in detail, the claims procedure followed in Rissler & McMurry appears substantially the same as the claims procedure followed in this case.
. Contract dispute clauses similar to Part "VII, supra, majority opinion, are common. See: United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951); 41 C.F.R. § 1-1.318; Graham Contracting, Inc. v. Department of General Services, Fla.App., 363 So.2d 810 (1978). Prior to the passage of the Wunderlich Act, 41 U.S.C. §§ 321, 322, dispute clauses making the agency decision “final and conclusive” could be attacked only upon a showing of “conscious wrongdoing, an intention to cheat or be dishonest.” Wunderlich, supra, 72 S.Ct. at 155. The Wunderlich Act, supra, subjects agency decisions made pursuant to a dispute clause available for review if:
“ * * * fradulent [sic] or capricious or arbitrary or so grossly erroneous as necessarily *272to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C. § 321.
In addition, it provides:
“No Government contract shall contain a provision making final on a question of law the decision of any administrative official, representative, or board.” 41 U.S.C. § 322.
. Section 1-39-104(a), W.S.1977, Cum.Supp. 1982, provides:
“(a) A governmental entity and its public employees while acting within the scope of duties are granted immunity from liability for any tort except as provided by W.S. 1-39-105 through 1-39-112. Any immunity in actions based on a contract entered into by a governmental entity is waived except to the extent provided by the contract if the contract was within the powers granted to the entity and was properly executed. The claims procedures of W.S. 1-39-105 through 1-39-112 apply to contractual claims against governmental entities.” (Emphasis added.)