Boundary Backpackers v. Boundary County

JOHNSON, Justice.

This case concerns a county ordinance that requires all federal and state agencies to comply with a county land use policy plan. We conclude that the ordinance violates the U.S. Constitution because federal law preempts portions of the ordinance and that the entire ordinance is invalid because these portions are not severable. We also conclude that the one individual who has standing to challenge the ordinance is not entitled to attorney fees under the private attorney general doctrine.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS

In 1992, the Boundary County Board of Commissioners (the board) enacted an ordinance (the ordinance), entitled Boundary County Interim Land Use Policy Plan (the plan). The ordinance declares that the scope and purpose of the plan is “to guide the use of public lands and public resources in Boundary County and to protect the rights of private landowners.” The ordinance directs that “all federal and state agencies shall comply with” the plan. The plan contains the following edicts to state and federal agencies:

Federal and state agencies proposing actions that will impact [the plan] shall prepare and submit in writing, and in a timely manner, report(s) on the purposes, objectives and estimated impacts of such actions, including economic, to [the board]. These report(s) shall be provided to [the board] for review and coordination prior to federal or state initiation of action.
*374Federal land agencies shall not acquire any private lands or rights in private lands within Boundary County without first assuring:
a. That as a minimum, parity in land ownership status is maintained; and
b. That private property interests are protected and enhanced.
... Federally managed lands that are difficult to manage or which lie in isolated tracts shall be targeted for disposal.
... Boundary County concurrence shall be required prior to any [federal and state land] adjustments.
Boundary County shall determine land withdrawals for hazardous and nonhazardous waste storage as well as the types and points of origin of such waste.
... Before federal and state land agencies can change land use, adverse impact studies on uses shall be conducted and mitigation measures adopted with concurrence from Boundary County.
... Any federally proposed designation of Wild and Scenic Rivers and all federal policies regarding riparian management in Boundary County shall be coordinated with [the board] and shall comply with any County water use plan.
... Boundary County may develop Wild and Scenic River Designations of its own design and shall require full federal compliance in the acceptance and enforcement of such designations.
... No wilderness areas shall be designated in Boundary County.

The ordinance directs enforcement of the plan: “Boundary County shall enforce compliance with [the plan] and shall monitor consistency between federal and state actions and activities and the land use requirements enumerated herein.”

The board sent copies of the plan to all federal, state, and local governmental agencies, together with a form letter requesting that each agency give the board ninety days notice prior to taking any proposed actions that would affect the economic stability, custom, or culture of Boundary County (the county).

Boundary Backpackers, the North Idaho Audubon Society, and Bonners Ferry Forest Watch (the organizations) are non-profit membership groups located in the county. In 1993, the organizations and eighteen individuals (the individuals) who are residents of the county sued the county and the members of the board, seeking (1) a declaratory judgment that the ordinance is unconstitutional and void, (2) an injunction enjoining the board members from enforcing the ordinance and directing that they repeal the ordinance, (3) damages, and (4) attorney fees and costs. The organizations and the individuals alleged that the ordinance threatens their individual and collective environmental, aesthetic, and recreational interests in the state and federal lands, waters, and natural resources in the county.

The organizations and the individuals moved for summary judgment. The county and the board moved to dismiss the suit. The board members submitted an affidavit in which they stated that the board “deemed that it would not be proper to seek enforcement of the ordinance by fines or penalties.” The organizations and several of the individuals submitted affidavits stating the effect the ordinance has on them.

The trial court granted summary judgment to the organizations and the individuals, ruling that one or more of them had standing and that the issues presented were ripe for review. The trial court concluded that the ordinance requires the federal government to maintain ownership parity in the disposition and acquisition of federal properties and, consequently, conflicts with article I, section 8, clause 17 of the U.S. Constitution (the Property Clause), as well as the Federal Land Policy Management Act of 1976, 43 U.S.C. § 1715(a) (1986). The trial court ruled that under article VI, clause 2 of the U.S. Constitution (the Supremacy Clause), the ordinance is preempted by federal law. The trial court also concluded that the board exceeded its authority in enacting the ordinance based upon article IX, sections 7 and 8 *375of the Idaho Constitution and related statutes which vest the state board of land commissioners with management authority over state lands. The trial court declared the entire ordinance void on the basis that the invalid provisions were pervasive and awarded the organizations and the individuals attorney fees under the private attorney general doctrine.

The county and the board members appealed.

II.

ONE OF THE INDIVIDUALS HAS STANDING.

The county and the board members assert that the trial court incorrectly determined that one or more of the organizations and individuals had standing. We disagree.

In Miles v. Idaho Power Co., 116 Idaho 635, 778 P.2d 757 (1989), the Court stated three basic propositions concerning standing that guide our decision here:

1. “The doctrine of standing focuses on the party seeking relief and not on the issues the party wishes to have adjudicated.”
2. “[T]o satisfy the case or controversy requirement of standing, litigants generally must allege or demonstrate an injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury.”
3. “[A] citizen and taxpayer may not challenge a governmental enactment where the injury is one suffered alike by all citizens and taxpayers of the jurisdiction.”

Id. at 641, 778 P.2d at 763.

In the present case, the county and the board members objected to various portions of the affidavits submitted by the organizations and the individuals concerning their standing to bring this action. The trial court sustained most of these objections, overruling only a few. We review those portions of the affidavits to which the county and the board members objected to determine whether they are admissible as required by I.R.C.P. 56(e). Hecla Mining Co. v. Star-Morning Mining Co., 122 Idaho 778, 782-87, 839 P.2d 1192, 1196-1201 (1992). We agree with the trial court in sustaining most of the county’s and the board members’ objections. Therefore, we do not consider these portions of the affidavits in determining whether the organizations and the individuals have standing.

Considering the remaining portions of the affidavits submitted on behalf of the organizations and all but one of the individuals, they do not demonstrate an injury in fact or a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury. Likewise, with regard to the organizations and all but one of the individuals, we do not find an injury that is not suffered alike by all citizens of the county.

The affidavit of Dan Krmpotich, a commercial guide in the county, contains the following statement that establishes his standing to challenge the ordinance: “If Boundary County succeeds in enforcing the ordinance ..., I shall lose a very substantial portion of my existing available open space usable for high quality recreation related to wildlife and wild lands.” The county and the board members objected on the grounds that this statement lacked foundation, was an inadmissible opinion, and constituted speculation. There are other portions of the affidavit to which the county and the board members did not object, except to say that they were self-serving. So far as we can understand this objection, it does not render these statements inadmissible. These statements provide an ample foundation to support Krmpotich’s concluding statement of the injury he will suffer from the enforcement of the ordinance. They reveal Krmpotich’s reliance since 1982 on the federal and state public lands in the county as a site for professionally guiding for compensation over 200 clients. His opinion that if the counfy enforces the ordinance he will lose a very substantial portion of the existing available open space for this purpose qualifies as an expert opinion admissible pursuant to I.R.E. 702 and, therefore, does not constitute speculation. Krmpotich has demonstrated an injury in fact that is not one suffered alike by all citizens and taxpayers of the county and *376a substantial likelihood that a declaration of the uneonstitutionality of the ordinance will prevent or redress the claimed injury. Therefore, he has standing.

III.

THIS CASE IS RIPE FOR JUDICIAL REVIEW.

The county and the board members assert that this case is not ripe for judicial review. We disagree.

In Miles, the Court pointed out that “a declaratory judgment action must raise issues that are definite and concrete, and must involve a real and substantial controversy as opposed to an advisory opinion based upon hypothetical facts. Ripeness asks whether there is any need for court action at the present time.” 116 Idaho at 642, 778 P.2d at 764. All of these conditions are met in this case. The ordinance is in place. It contains several edicts concerning the compliance of federal and state agencies with the plan and announces that “[n]o wilderness areas shall be designated in Boundary County.” The ordinance proclaims: “Boundary County shall enforce compliance with [the plan]....” The affidavit of the board members who enacted the ordinance stating that they “deemed that it would not be proper to seek enforcement of the ordinance by fines or penalties” does not override the terms of the ordinance requiring enforcement. We will not speculate whether the board members will choose another form of enforcement or whether a new board will choose to enforce the ordinance by fines or penalties. The ordinance requires the plan to be enforced.

In Harris v. Cassia County, 106 Idaho 513, 681 P.2d 988 (1984), the Court noted that

the right sought to be protected by a de-elaratoiy judgment “may invoke either remedial or preventative relief; it may relate to a right that has either been breached or is only yet in dispute or a status undisturbed but threatened or endangered; but, in either or any event, it must involve actual and existing facts.”

Id. at 516-17, 681 P.2d at 991-92 (quoting State ex rel. Miller v. State Bd. of Educ., 56 Idaho 210, 217, 52 P.2d 141, 144 (1935)). In the present case, the ordinance threatens to disturb the status and management of federal and state public lands in Boundary County. The issues are definite and concrete and there is a real and substantial controversy.

IV.

CONGRESS HAS PREEMPTED PORTIONS OF THE ORDINANCE PLACING REQUIREMENTS ON FEDERAL AGENCIES.

The county and the board members assert that the none of the provisions of the ordinance is preempted by federal law. We disagree.

The power over federal land granted to Congress in the Property Clause is plenary and without limitations. California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 580, 107 S.Ct. 1419, 1424-25, 94 L.Ed.2d 577 (1987). The Supremacy Clause invalidates state laws or local ordinances that “ ‘interfere with, or are contrary to,’ federal law.” Hillsborough County, Fla v. Automated Medical Labs. Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 2374-75, 85 L.Ed.2d 714 (1985) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23 (1824) (Marshall, C.J.)).

The question we must address in this case is whether Congress has enacted legislation that preempts any portions of the ordinance. Granite Rock, 480 U.S. at 581, 107 S.Ct. at 1425. In Granite Rock, the Supreme Court delineated the elements of preemption:

“[S]tate law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.”

*377Id. (citations omitted) (quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 616, 621, 78 L.Ed.2d 443 (1984)).

Congress has enacted numerous laws (federal land laws) that provide for the management and preservation of federal land and the resources on federal land. See, e.g., the Multiple-Use Sustained-Yield Act of 1960,16 U.S.C. §§ 528-531 (1985); the Wilderness Act, 16 U.S.C. §§ 1131-1136 (1985 & Supp. 1995); the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271-1287 (1985 & Supp.1995); the Forest and Rangeland Renewable Resources Planning Act of 1974, 16 U.S.C. §§ 1600-1687 (1985 and Supp.1995); and the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1783 (1986 & Supp. 1995). Several portions of the ordinance that place requirements on federal agencies conflict with federal land laws.

The ordinance requires that “[flederal land agencies shall not acquire any private lands or rights in private lands within Boundary County without first ensuring ... parity in land ownership status is maintained; and ... private properly interests are protected and enhanced.” This imposes restrictions on federal agencies that are inconsistent with federal laws authorizing acquisition of land. See, e.g., 16 U.S.C. § 1277 (authorizing the Secretary of the Interior and the Secretary of Agriculture to acquire land within the boundaries of any component of the wild and scenic rivers system); 43 U.S.C. § 1715(a) (authorizing the Secretary of the Interior to “acquire pursuant to [the Federal Land Policy and Management Act of 1976], by purchase, exchange, donation or eminent domain, lands or interests therein”); 7 U.S.C. § 428a (1980) (authorizing the Department of Agriculture to “acquire land, or interest therein, by purchase, exchange or otherwise, as may be necessary to carry out its authorized work”). The provisions of the ordinance limiting the acquisition of land by federal agencies stand as obstacles to the full accomplishment of the purpose Congress evidenced in these laws.

The ordinance requires that “Boundary County shall determine land withdrawals for hazardous and non-hazardous waste storage as well as the types and points of origin of such waste.” This conflicts with the authority of federal agencies and Congress itself concerning the withdrawal of federal land. See, e.g., 43 U.S.C. § 1714(a), (d) (authorizing the Secretary of the Interior to make, modify, extend or revoke withdrawals of less than five thousand acres); 43 U.S.C. § 1714(e) (requiring congressional review process for withdrawals of greater than five thousand acres).

The ordinance requires that “Boundary County concurrence shall be required prior to any [federal] land adjustments,” “whether it be by proposed disposal, exchange or proposed change in use,” and that “[b]efore federal ... land agencies can change land use, adverse impact studies on uses shall be conducted and mitigation measure adopted with concurrence from Boundary County.” The ordinance states that “[t]his shall specifically include, but is not limited to any proposed changes in wildlife habitat, wildlife recovery plans, timber sales volume projections, restricted access, road closures, and primitive or wilderness designation.” None of the federal land laws give local governmental units this type of veto power over decisions by federal agencies charged with managing federal land. In addition, this veto power is contrary to the provisions of the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1543 (1985 & Supp. 1995), which authorizes the Secretary of the Interior, the Secretary of Commerce, and the Secretary of Agriculture to acquire land to carry out the purposes of the Act. 16 U.S.C. § 1584. It is also contrary to the portion of the Endangered Species Act which requires the Secretary of the Interior and the Secretary of Commerce to develop and implement recovery plans for endangered species. 16 U.S.C. § 1533(f). This veto power stands as an obstacle to the accomplishment of the full purposes and objectives Congress evidenced in these federal laws. The ordinance requires that “[a]ny federally proposed designation of Wild and Scenic Rivers ... shall comply with any County water use plan.” The ordinance also requires “full federal compliance in the acceptance and enforcement of’ wild and scenic rivers designations by the county. These provisions are con*378trary to the process for the designation of wild and scenic rivers in the Wild and Scenic Rivers Act. 16 U.S.C. §§ 1275-1276. The requirement stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.

The ordinance commands that “[n]o wilderness areas shall be designated in Boundary County.” This conflicts with the process for the establishment of wilderness areas contained in the Wilderness Act. 16 U.S.C. § 1132.

The foregoing portions of the ordinance are preempted by federal law and are therefore unconstitutional.

V.

THE PORTIONS OF THE ORDINANCE THAT ARE PREEMPTED BY FEDERAL LAW ARE NOT SEVERABLE.

The county and the board members assert that any portions of the ordinance that are unconstitutional because they are preempted by federal law are severable. We disagree.

If an unconstitutional portion of a statute or ordinance is integral or indispensable, it is not severable, and the entire measure must fall, although the Court will, when possible, recognize and give effect to a sever-ability clause. Idaho Dep’t of Water Resources v. United States, 128 Idaho 246, 912 P.2d 614 (1995).

The ordinance does contain a severability clause:

If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional by a federal or state court, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof.

Despite thé obvious intent of the board to preserve the remainder of the ordinance if portions are declared unconstitutional, the portions of the ordinance that are preempted by federal law are so integral and indispensable to the ordinance, we conclude the entire ordinance must fall. Some of the edicts contained in the ordinance apply to both federal and state agencies, but many are directed only at federal agencies. It is clear to us that the board did not intend to attempt to regulate only state land, but instead intended to regulate the use of all public land in the county. To sever the portions that attempt to restrict federal agencies and leave those that attempt to restrict state agencies emasculates the obvious purpose of the ordinance. Therefore, we conclude that the entire ordinance is invalid. Because of this ruling, it is unnecessary for us to address the claim that the ordinance violates the provisions of the Idaho Constitution concerning the management of state lands by the state board of land commissioners. Idaho Const, art. IX, §§ 7, 8.

VI.

THERE IS NO SUBSTANTIAL AND COMPETENT EVIDENCE TO SUPPORT A FINDING OF NECESSITY FOR THIS ACTION, ONE OF THE PREREQUISITES FOR THE AWARD OF ATTORNEY FEES PURSUANT TO THE PRIVATE ATTORNEY GENERAL DOCTRINE.

The county and the board members assert that the trial court should not have awarded attorney fees pursuant to the private attorney general doctrine. We agree.

We will overturn an award of attorney fees under the private attorney general doctrine only if the trial court has abused its discretion. Miller v. Echo Hawk, 126 Idaho 47, 49, 878 P.2d 746, 748 (1994). Whether the three-part test for determining to award attorney fees pursuant to the private attorney general doctrine is met requires a factual determination by the trial court. Id. We review factual findings that are the basis for an exercise of discretion in awarding fees to determine if the findings are clearly erroneous, that is, whether there is substantial and competent evidence to sustain them. Id.

One part of the test to determine whether to award attorney fees under the private attorney general doctrine is the necessity for *379private enforcement. Id. The trial court resolved this part of the test by an oral ruling that “[n]umerous agencies who are very much aware of this ordinance and for their own purposes ... chose not to seek ... public enforcement of it perhaps because they would wait for a more direct threat than was presented on the facts.” To the extent this constitutes a finding of fact that there was the necessity for private enforcement, we review the record to see if there is any substantial and competent evidence to support this finding.

The complaint alleges that neither the prosecuting attorney nor the attorney general would bring this action on behalf of the public. Also, there is some indication in the record that federal and state agencies were aware of the ordinance. The only other information in the record before us concerning the necessity for private enforcement is contained in comments of counsel for the parties during the hearing on the county’s objections to the organizations’ and the individuals’ cost bill, which included attorney fees. Counsel for the organizations and individuals made the following comments:

“The necessity for private enforcement.” I don’t think there’s any question about that. As I point out, the Federal Government wasn’t about to sue anybody. The state had sent back a letter with its — with its Benewah County opinion saying Boundary County, you can’t regulate our — you can’t regulate our state laws or state lands. This was ignored but the State wasn’t about to do something until its finger got caught in the vice until somebody tried to do something which they had not done at the time we filed the lawsuit.

In response, counsel for the county made the following comments:

What necessitated, what truly necessitated private enforcement. As [counsel for the organizations and the individuals] indicated, and if we take the position of [counsel for the organizations and the individuals] and just take it as the gospel, all the agencies that this policy applied to said we aren’t going to worry about it, we’ll take care of it when and if the question arises. After making these comments, counsel for the county went on to argue that there was no necessity for the organizations and the individuals to bring the action. These comments of counsel are not evidence, nor do they constitute a stipulation that neither the federal nor state agencies had taken any action to challenge the ordinance. There is no evidence to support the trial court’s finding that these agencies chose not to seek to have the ordinance declared invalid. Therefore, there is no basis for the award of attorney fees pursuant to the private attorney general doctrine.

VIL

CONCLUSION

We affirm the trial court’s grant of summary judgment declaring the ordinance in violation of the U.S. Constitution and therefore null, void, and unenforceable in its entirety. We find it unnecessary to address the state constitutional implications of the ordinance. We reverse the trial court’s award of attorney fees.

We award Daniel Krmpotieh costs, but not attorney fees, on appeal.

McDEVITT, C.J., and TROUT, J., concur.