concurring and dissenting.
I concur in the Court’s opinion, but I respectfully dissent from Part VI.
When considering a party’s entitlement to attorney fees under the private attorney general doctrine this Court considers: (1) the strength or societal importance of the policy vindicated by the litigation; (2) the necessity for private enforcement and the magnitude of the resultant burden on the plaintiff; and (3) the number of people standing to benefit from the decision. Miller v. Echo Hawk, 126 Idaho 47, 49, 878 P.2d 746, 748 (1994); Hellar v. Cenarrusa, 106 Idaho 571, 577-78, 682 P.2d 524, 530-31 (1984).
The Court’s opinion concludes that respondent has not satisfied the first half of the second element, the necessity for private enforcement. Specifically, the Court states “... there is no evidence to support the trial court’s finding that these agencies chose not *380to seek to have the ordinance declared invalid.” The record in this case establishes that neither the state nor the federal government joined in this suit. The federal government did not file this action and did not enter it even as an intervenor, although its amicus brief to this Court stated that the United States had a “strong interest” in seeing the ordinance declared invalid. Compare Miller, 126 Idaho at 48, 878 P.2d at 747 (Attorney General filed complaint in intervention asking for judicially imposed reapportionment plan). The record also shows that the Idaho Attorney General issued an opinion concluding that the State Land Board was not bound by the county ordinance, but the state of Idaho did not participate in this suit to invalidate the ordinance.
The record in this case contains the representation of counsel for respondents that the present suit was the only one of its type pending at the time the case was argued to the district court, although counsel acknowledged that a New Mexico case had been filed since then. The attorney for Boundary County did not dispute this assertion. I would accept these statements of counsel as a stipulation, particularly since the County itself, in its appellate briefing, did not raise the issue that the district court was erroneous in concluding 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_”
The facts before the district court in Miller were the same as before the district court here: no governmental agency had in fact brought a court action over this issue of public importance. I therefore submit that the Court here should have followed the precedent of Miller and found no abuse of discretion by the district court in concluding that private attorney general fees should be awarded to plaintiffs.